2018 PLP 291 (YLRN)

SHAMSUDDIN ABBASI, J.--We intend to dispose of Cr. Appeal No.D-84 of 2005, filed by Appellant Hussain against the judgment dated 15.06.2005 passed by learned Additional Sessions Judge Tando Muhammad Khan in Sessions Case No. 105 of 1996 (Re: State v. Laique and others) arising out of Crime No.36/1996 under sections 302, 147, 148, 149, 504, 114, P.P.C. registered at Police Station B.S. Karim, whereby the appellant was convicted under section 302(b), P.P.C. and sentenced to imprisonment for life. However, appellant was extended benefit of section 382-B, Cr.P.C. The learned trial court has also acquitted co-accused Laique, Darya Khan, Dalel, Haji Soonharo and Ghulam Hussain by extending them benefit of doubt through same judgment. The complainant of this case has preferred Criminal Acquittal Appeal No.D-115/2005 against acquitted accused/respondents Nos.1 to

5. Both the appeals arise out of the same judgment and require same appreciation of evidence. Therefore, we dispose of the same together. 2 The brief facts of prosecution case, according to the complainant Khair Muhammad alias Khairo son of Mooso Lund, are that Laique son of Dary Khan, Darya Khan son of Laique, Hussain son of Laique, Daloo son of Laique, all by caste Lund, had a dispute on matrimonial affairs with the complainant party. The wife of complainant and wife of deceased Abdul Majeed alias Majeed were daughters of accused Laique, his sisters were wives of accused Darya Khan and Hussain. Three days prior to the incident, their nek mards settled the matrimonial dispute between the parties but parties had still hatred against each other. It is alleged that on 16.05.1996 at 600 hours complainant, his father and his brothers were sleeping in their house, when accused Hussain armed with SBBL gun, Laique, Haji Soonharo, Darya Khan, Daloo and Ghulam Hussain being armed with hatchets came there and started abusing. It is further stated that Laique asked his daughters to accompany with them. Complainant party restrained them on which Laique became annoyed and instigated his son Hussain, on which Hussain fired from his gun which hit to Abdul Majeed on his right thigh, who raised cries and fell down on the ground. It is stated that accused Darya Khan caused hatchet injuries from sharp side to his father Mooso. Accused Soonharo caused sharp side hatchet below to his mother Mst. Dhanjani on her head and other parts of body. Accused Ghulam Hussain caused sharp side hatchet blow to his brother Natho on his head and other parts of body. Accused Dalo caused sharp side hatchet below to Natho on his head. On commotion P.Ws Photo son of Nooh, Aamoon son of Leemoo, both cousins of complainant were attracted. They also saw the accused while causing injuries to them. In the incident accused had also sustained injuries at the hands of complainant party. Thereafter, accused while abusing them left their house. Later on persons were taken to the hospital, but on the way, Abdul Majeed succumbed to injuries. Deceased and injured were left at hospital and complainant went to Police Station and lodged FIR bearing Crime No.36/1996 under sections 302, 147, 148, 149, 114, 504, 337-A(i), 337-F(i), P.P.C.

3. After usual investigation police submitted challan against the accused under sections 302, 337-F(i), 337-F(ii), 147, 148, 149, 504, 114, P.P.C.

4. Charge was framed against the accused by the learned trial court at Ex.02. Accused pleaded not guilty and claimed to be tried.

5. Prosecution in order to prove its case had examined P.W-1 Dr. Abdul Rehman at Ex.9, who produced medical certificate of injured Mst. Dhanjani, injured Mooso, injured Natho along with relevant record and X-Rays of all injured and post-mortem report of deceased Abdul Majeed at Exs.9/A to 9/N, respectively, P.W-2 complainant Khair Muhammad at Ex.10, who produced FIR at Ex.10/A, P.W-3 Photo at Ex.11, P.W-4 Aamoon at Ex.12, P.W-5 Natho at Ex.13, who produced his 164, Cr.P.C. statement at Ex.13/A, P.W-6 Mooso was not examined vide statement of Advocate for complainant and no objection of D.D.A. at Ex.14, P.W-7 Mst. Dhanjani at Ex.15, who produced her 164, Cr.P.C. statement at Ex.15/A PW-8 Haji Photo (mashir of injuries, inquest report, inspection of dead body, place of wardat, arrest of accused, recovery of gun, recovery of hatchet, examined at Ex.16, who produced the mashirnamas at Exs.16/A to 16/K respectively. P.W-9 Tapedar Jameel Ahmed examined at Ex.17, who produced the sketch of place of wardat at Ex.17/A, P.W-10 Investigation Officer Khadim Hussain examined at Ex.18. Thereafter, D.D.A. closed the prosecution side at Ex.19.

6. Statements of accused were recorded under section 342, Cr.P.C. in which they pleaded their innocence and denied the charges of alleged crime. Accused Laique has stated that he and his sons, Hussain and Darya Khan went to the house of complainant in order to take back his daughters who were the wives of complainant and deceased Abdul Majeed, instead of permitting his daughter by their spouses complainant party attacked upon them and caused hatchet injuries to his son Darya Khan, which according to medical officer caused permanent disfigurement of the face of right side of his son, whereas he became disabled from his both hands. Fire of complainant which aim to them hit to deceased Abdul Majeed, who was sleeping in his room at that time, who subsequently died due to excess oozing of blood from his injuries on the way to hospital. They cannot even think for killing of his son-in-law. He lodge FIR of the alleged incident first at the police station prior to the FIR of complainant. All other accused have pleaded themselves innocent and adopted the same statement by accused Laique except accused Haji Soonharo and Ghulam Hussain, who pleaded their innocence and claimed that they have been involved falsely by the complainant being relative of accused Laique and stated that in fact they were residing at the distance of one mile from the house of complainant and accused party. So far gun from accused Hussain and hatchets from other accused except Laique are concerned, the accused stated that they have been foisted against them by the police at the instance of complainant. The accused neither examined themselves on oath nor led any evidence in their defence.

7. After hearing the learned counsel for the parties and assessment of the evidence, learned trial court passed the judgment dated 15.06.2005, whereby con-victed and sentenced the appellant Hussain as stated above, whereas, acquitted the co-accused. Against said judgment the above Criminal Appeal and Criminal Acquittal Appeal have been preferred.

8. Learned Counsel for appellant has contended that there was matrimonial dispute between the parties, that prior to this incident accused persons had also lodged FIR against complainant party. He contended that empty cartridges were not sent to the ballistic expert. He further contended that blood stained clothes of deceased were dispatched after 45 days of the incident to the Chemical Examiner. He further contended that incident had taken place inside the house. That there is distance of 06 acres between the house of complainant and accused party. He further contended that recovery of gun was made after 09 days of the incident; that the same court acquitted the complainant party according to the instructions obtained by learned D.P.G. He further contended that no independent person has been examined by prosecution. He also contended that the co-accused have been acquitted on the same set of evidence. Lastly, he prayed for acquittal of the appellant.

9. On the other hand, Shahzado Salim Nahyoon, D.P.G for the State has argued ocular evidence was corroborated by the medical evidence. DPG contended that incident took place inside house, blood of deceased and witnesses was found which showed that the incident occurred inside the house of complainant. He further contended that appellant and others came armed with weapons, in the house of deceased and committed his murder. He further contended that so far the motive is concerned, it is double edged weapon. He further contended that recovery of two empties outside the house would not adversely affect the case of prosecution as ocular evidence was fully corroborated by medical evidence. He further contended that ocular evidence corroborated by medical evidence was sufficient for maintaining the conviction, corroborative evidence is not required in exceptional cases. He further contended that in the statements recorded under section 342, Cr.P.C., it is mentioned that the deceased died by means of injuries sustained by him due to firearm. He further contended that statements recorded under section 342, Cr.P.C. was not laconic, all incriminating pieces of evidence were put to accused. Learned D.P.G. prayed for dismissal of appeal against conviction. However, frankly stated that appeal against accused merits dismissal.

10. In rebuttal, Counsel for the appellant stated that fire was not repeated and deceased sustained single injury and according to doctor that injury was sufficient to cause death. He further submitted that incident had taken place on 16.05.1997 at 06:00 a.m. and FIR was lodged on the same date at 07:30 a.m. He submitted that there is distance of 14/15 kilometer between Police Station and place of incident.

11. Heard Counsel for appellant, learned D.P.G. and perused the record. The case of prosecution rests upon ocular evidence, medical evidence, circumstantial evidence, recovery and motive. The ocular evidence, consists of complainant Khair Muhammad (brother of deceased), Mst. Dhaijani (mother of deceased), Natho (brother of deceased), while Photo and Amoon are also cited as eye-witnesses of the incident, who attracted at the scene of offence on fire shots.

12. We have examined the evidence of complainant Khair Muhammad, in which he has deposed that his two sisters have been married with accused Darya Khan and Hussain, both sons of accused Laique, whereas, two daughters of accused Laique have been married with him (complainant) and deceased Abdul Majeed. He further deposed that due to matrimonial dispute, settlement was made by nekmards of their community before three days of this incident. He further deposed that on 16.05.1996 he along with his father Mooso, his brothers Natho, Majeed (deceased) and his mother Mst. Dhanjani were sleeping in their house. At about 06:00 a.m. accused Laique empty handed, Hussain armed with SBBL gun, Darya, Dalel, Haji Soonharo and Ghulam Hussain armed with hatchet were entered in their house. Accused Laique started abusing them and directed his daughters to accompany with them, on which, father of complainant Mooso restrained them while saying them that yesterday faisla was held and today why were you taking away your daughters on which accused Laique became annoyed and instigated his son Hussain and directed him not to spare them, on which, Hussain straight away fired upon his brother Abdul Majeed, who sustained firearm injuries on left thigh and fell down on the ground. Accused Darya Khan caused two sharp sided hatchet blows to his father Mooso and so also caused back side hatchet injuries on his body. Accused Soonharo caused hatchet injuries on the head of his mother Mst. Dhanjani and so also caused back side hatchet blows on the other parts of body of his mother. He further deposed that accused Dalel had also caused injuries to his brother Natho and accused Ghulam Hussain had also caused hatchet blows to Natho. On the commotion and firing shots reports P.Ws Photo and Amoon were also attracted and witnessed the incident, thereafter, accused while abusing them took away their wives. He further deposed that thereafter he made arrangement of vehicle and shifted injured to hospital and on the way to hospital his brother Abdul Majeed succumbed to his injuries. Thereafter, he went to Police Station and lodged FIR. During cross-examination he admitted the relation between prosecution witnesses as well as relation with accused party. He further stated that accused Laique has lodged FIR against him, Photo, Natho, Moso and Amoon prior to lodging of FIR of this incident. He further stated that accused Darya had also received injuries on right side of his face with hatchet, whereas, accused Laique had received injuries on right arms. The learned trial court wrote note that accused Laique was disabled from right arm but complainant stated that prior to this incident both arms of accused Laique were fractured. He further stated that after lodging the FIR police first visited at Hospital and examined injured, thereafter visited the place of incident. He further stated that police had recovered and secured empty cartridge of gun from outside of his house. We have noticed that during cross-examination defence Counsel had failed to shatter the evidence of complainant. P.W. Natho has given almost same details of incident as stated by complainant Khair Muhammad. He had admitted the relation between P.Ws as well as relation with accused. He stated that accused Laique was his maternal uncle. He further stated that police had recorded his statement under section 161, Cr.P.C. and his statement under section 164, Cr.P.C. was also recorded by Magistrate. During his cross-examination he stated that about one year prior to this incident dispute between the parties arose on matrimonial affair. However, he has admitted in his cross-examination that accused Darya Khan and Laique had also received injuries and he has admitted that they were accused in counter case lodged by accused. He further stated that deceased Abdul Majeed had received firearm injury when he was inside the room. He further stated that Mst. Zadi was daughter of Laique and wife of complainant Khair Muhammad and still she is wife of complainant Khair Muhammad and living with him in his house. Mst. Zaiboo daughter of Laique was wife of deceased Abdul Majeed. He had suggestion that they took wife of Khair Muhammad, deceased Abdul Majeed forcibly after causing injuries to Laique and his sons and forcibly taken away the daughters of Laique.

13. We have also examined the evidence of P.W. Mst. Dhanjani, who has stated in the same line as stated by the complainant. She was cross-examined at length. During cross-examination she has stated that accused Laique is her brother and two daughters of accused Laique are her daughters-in-law and her two daughters are daughters-in-law of accused Laique and she stated that when accused entered in her house, all inmates of family were sleeping and on the abuse and use of filthy language used by accused Laique, her all family members woke up on the noise of accused Laique. She stated that there were two rooms in her house and one veranda in front of these rooms and thereafter there was courtyard. She further stated that there was dispute on matrimonial affairs with accused Laique and their faisla was held by Ali Ahmed Lund three days prior to this incident. She further stated that accused Laique was not happy on the faisla of nekmard Ali Ahmed Lund. She further stated that due to quarrel and sudden fight both parties, her sons, herself and accused side sustained injuries. She further stated that after this incident she also brought back her daughters from the house of accused Laique. She further stated that her one daughter resides with accused and one resides with her. However, she denied that accused Hussain and others had sustained hatchet injuries on the fact and other parts of the bodies at the hands of her sons.

14. We have also examined the deposition of P.W. Photo, who stated that at the time of incident he was sitting in his house. He heard commotion from the house of Moosa, on that, he went running there, PW Arnoon also met with him on the way. He stated that he and P.W. Amoon had seen that accused Laique was empty handed, accused Haji Soonharo, Ghulam Hussain, Darya Khan and Dalel were armed with hatchet. He stated that Moosa had sustained hatchet injuries on his head, Natho also sustained injuries on his head and Mst. Dhanjani also sustained hatchet injury on her hand and deceased Abdul Majeed had also sustained firearm injury on his thigh. Alter departure of accused from the scene of offence, they shifted the injured to hospital. He was also cross-examined at length. He stated that the distance between the house of complainant and his village would be 2 or 3 acres. He further stated that he saw 04 injured lying there, out of them, one was woman and three were men. Abdul Majeed was lying at the door whereas others were lying at the thalla of the house. He further stated that his statement was also recorded by the police. However, he has denied that suggestion that he along with complainant party made attack upon present accused and caused injuries and subsequently they made this false FIR.

15. We have also examined deposition of P.W. Amoon who has also stated in same line as stated by P.W. Photo. We have also examined his cross-examination. He has admitted the relation in between the parties. He has stated that the distance between the house of complainant and his house would be one acre.

16. In our considered view all P.Ws. have fully supported the case of prosecution. P.Ws were cross-examined at length but learned defence Counsel did not shatter their evidence and could not succeed in getting major contradictions. Prosecution evidence is reliable, trust worthy and confidence inspiring. We have no reason to disbelieve mainly for the reasons that witnesses were natural and incident took place in house.

17. Ocular evidence was corroborated by medical evidence. Prosecution has examined P.W. Dr. Abdul Rehman, who conducted the post-mortem of deceased Abdul Majeed and examined injured Mooso, Mst. Dhanjani and Natho. He has stated that dead body of deceased was brought by ASI Khadim Hussain of Police Station Bulri Shah Karim on 3.05.1996 and he had conducted postmortem found injury No.1 to be of gunshot circular gaping wound with inverted irregular and lacerated ges cm 4 x 4 cm x muscle deep (wound of entry) extending from middle of left thigh towards inner side on the back of left thigh (wound of exit) and he was of the opinion that cause of death was profuse hemorrhage and shock leading to cardio respiratory failure due to injury No.1. He further stated that injury No.1 was caused by gunshot to the deceased and the same was ante mortem nature and was sufficient to cause the death in ordinary course of life. He further stated that fire was shot from the distance of 03 feet and probably time between death and injury was about 15 minutes. It is an admitted fact that in this incident deceased Abdul Majeed had died due to unnatural death and no one can deny this admitted fact, therefore, we hold that ocular testimony is fully corroborated by the medical evidence and all the eye-witnesses of the incident have clearly attributed this single firearm injury to accused Hussain.

18. During investigation police had recovered a gun and four hatchets from accused Darya Khan, Dalel, Haji Soonharo and Ghulann Hussain and prosecution had examined P.Ws Haji Photo and Investigating Officer ASI Khadim Hussain.

19. We have examined the evidence of P.W Haji Photo, who was made mashir of inquest report of deceased Abdul Majeed, mashirnamas of dead body, place of wardat and injuries of injured Natho, Mst. Dhanjani and Mooso as well as mashir of arrest of accused Darya Khan, Haji Soonharo and Dalel. Accused Ghulam Hussain was also arrested in his presence. He has deposed that accused Dalel produced four hatchets from inside of the house and such mashirnama was prepared in his presence.

20. We have also examined the evidence of P.W Jameel Ahmed, who was Tapedar and prepared sketch of incident. As per sketch of place of incident it was shown that cot of deceased was lying in the room where deceased had received firearm injuries at the hands of accused. As per mashirnama of place of incident as well as sketch prepared by the Tapedar, the incident had taken place inside the house of complainant party.

21. We have also examined deposition of P.W-9/ASI Khadim Hussain, who has stated that on the day of incident he was duty officer, complainant Khair Muhammad appeared at P.S and disclosed the commission of cognizable offence. This P.W. after registration of FIR also conducted investigation in the case and recorded statements of P.Ws. under section 161, Cr.P.C. and prepared mashirnamas of dead body, injuries place of incident. He had also arrested the accused and interrogated accused Hussain, who during interrogation became ready to produce a gun used in the commission of crime, which was recovered in presence of mashir and such separate FIR was lodged by him against accused Hussain bearing FIR No.40/1996 under section 13-E Arms Ordinance. He had fully supported the case of prosecution and produced positive Chemical Examiner's report.

22. As far the motive is concerned, it appears that accused had no motive to kill the deceased Abdul Majeed or to cause injuries to witnesses but motive of accused party who came at the house of complainant party was to take away the hands of his daughters. It appeared that both parties are closely interse to each other as accused Laique was brother of Mst. Dhanjani (mother of deceased). It also appeared that this incident had taken place due to flare up at the moment when complainant party had raised objection to hand over the hands of two daughters of accused Laique otherwise deceased Abdul Majeed was son-in-law of accused Laique and brother-in-law of appellant Hussain and at the same time two sisters of deceased Abdul Majeed are real daughters-in-law of accused Laique.

23. We cannot ignore the version/ plea taken by the accused Laique in his statement recorded under section 342, Cr.P.C. in which he had admitted the motive that they went to the house of complainant to return back his daughters (wives of complainant and deceased) when flare up incident had taken place.

24. Learned trial court has convicted appellant Hussain under section 302(b), P.P.C. and sentenced him to imprisonment for life on the ground that sudden/free fight took place on the date and time of incident between complainant party and accused party, who are otherwise closely related to each other. The motive is matrimonial dispute. Both the parties have sustained injuries in the fight and two from accused side and three from complainant side had sustained injuries. During the fight, deceased Abdul Majeed has lost his life. As the accused had admittedly no intention to cause the murder of deceased Abdul Majeed. Learned trial court while extending the benefit of doubt to accused Laique, Darya Khan, Dalel, Haji Soonharo and Ghulam Hussain, acquitted them of the charge. Complainant did not file criminal revision for enhancement of sentence to appellant it means complainant was satisfied from the sentence awarded to the appellant. Admittedly, sudden incident had taken place between the parties and both parties sustained injuries. We have examined the plea taken by accused Laique in his statement recorded under section 342, Cr.P.C. which is very hard to believe for the reason that complainant of this case had made fire in order to kill the accused party but same was missed and hit to his own brother Abdul Majeed, who was sleeping. However, he admitted the fact that accused party went to the house of complainant. Motive was same as stated by the complainant. Presence of accused has been established at the scene of offence. We cannot ignore ocular testimony of complainant party which was supported by medical evidence as well as circumstantial evidence. Complainant party has assigned single injury to appellant Hussain and accused Laique has also admitted the presence of appellant Hussain at the scene of offence.

25. Under these circumstances, we hold that the case against appellant Hussain has been successfully established by the prosecution without any shadow of doubt and conviction awarded by the learned trial court was justified and well reasoned, impugned judgment does not suffer from any misreading or non reading of evidence. Prosecution evidence was quite reliable and trustworthy. Learned trial court has rightly convicted the appellant. Consequently, we maintain conviction and sentence awarded by the learned trial court to the appellant. Criminal Appeal No.84 of 2005 lacks merit and is dismissed. Appellant, was on bail, is called absent. NBW is ordered to be issued against appellant, to be executed by concerned S.S.P. for remanding Appellant to Central Prison Hyderabad, to serve out the sentence. Learned trial court had rightly acquitted co-accused by assigning sound reasons. Consequently, Criminal Acquittal Appeal No.D-115/ 2005 filed by complainant/appellant merits no consideration, the same is dismissed. HBT/H-16/Sindh Appeal dismissed.