2020 P Cr (PLP)

ABDUL MAALIK GADDI, J.

Through this criminal jail appeal, appellants Ashok Kumar and Waseem have assailed the legality and propriety of the judgment dated 25.01.2018, passed by the learned Additional Sessions Judge, Sehwan in Sessions Case No.189 of 2016, arising out of Crime No.73/2016, registered at Police Station Sehwan, under sections 302, 504, 34, P.P.C., whereby the learned trial Court after full-fledged trial, convicted and sentenced the appellants as mentioned in Point No.3 of the impugned judgment. For the sake of convenience it would be appropriate to reproduce the said point, which reads as under:- "Point No.3. In view of my above discussion on the aforementioned points, I am of the humble opinion that prosecution has proved its case beyond the reasonable doubt against the accused Ashok Kumar and Waseem Lodhi, therefore, the accused are guilty of offence punishable under sections 302(b), 504, 34, P.P.C. I, therefore, convict the accused namely Ashok Kumar son of Diya Lal under section 302(b), P.P.C. and sentence him to undergo R.I for life as Ta'zir and also convict and sentence accused namely Waseem son of Aziz Khan Lodhi to undergo ten (10) years' R.I as Ta'zir. The accused Waseem is also convicted under section 504, P.P.C. and sentenced to undergo imprisonment for one year's S.I. The accused are also directed to pay an amount of Rs.2.00,000/- each as compensation to L.Rs of deceased, as provided under section 544-A, Cr.P.C. In case of the failure to pay the compensation amount, the accused shall further undergo for six months' R.I. more. If the amount of compensation is recovered, the same shall be disbursed amongst the L.Rs. of deceased Syed Manzar Abbas Shah. The accused are also extended benefit of section 382-B, Cr.P.C. It is beneficial to mention that due to sudden clash, the tragedy of death of deceased at the hands of accused took place; therefore, I have taken the lenient view while awarding the punishment to the accused. Furthermore, the role of accused Waseem was one who started the quarrel and abused the deceased as such he provoked the accused Ashok who committed the murder of deceased Syed Manzar Abbas Shah, therefore, lesser punishment has been awarded to accused Waseem. It is also beneficial to mention that no any previous criminal record has been produced against both accused and this aspect of case was also considered while awarding them punishment. The accused namely Ashok Kumar and Waseem Lodhi are produced in custody and they be remanded to Central Prison Hyderabad, with remand warrant and conviction slip to serve out the sentence awarded to them. Copies of this judgment be given to the accused and prosecution free of costs under proper receipt."

2. The facts of the prosecution case are that complainant Syed Ali Raza Shah lodged FIR on 26.05.2017 at 2300 hours at PS Sehwan alleging therein that he along with his paternal cousin Syed Manzar Abbas Shah and friend Dost Muhammad and some others boarded in bus and came to Sehwan to visit Mela of Hazrat Qalander Lal Shahbaz and after ziarat when were on the way to Karachi and at about 2030 hours when they reached on Indus Highway near Garhi Wari, Sehwan saw one coaster coming which had jammed their Bus. The driver of the complainant party stopped the bus and the coaster driver also stopped his vehicle. In the meanwhile, one person alighted from the coaster and started abusing the complainant party to which the complainant and his paternal cousin Manzar Abbass and friend Muhammad Shahbaz alighted from the Bus for talks but the said person started pushing and maltreating. In the meantime, the driver of the coaster alighted having "patch cush", who as and when came started abusing and with intention of committing murder caused "patch cush" blow on right thigh, who raised cry and fell down on earth. Complainant party apprehended both persons and while shifting the injured to Taluka Hospital, Sehwan for treatment he succumbed the injuries in way. Accused having "patch cush"/screwdriver disclosed his name to be Ashok Kumar son of Diya Lal Hindu, resident of Panhwar Line, Karachi and other accused disclosed his name Waseem son of Aziz Khan Lodhi, resident of Liaquatabad. Karachi.

3. It appears from the record that after completing the usual investigation challan was submitted against the accused.

4. After commencement of trial, the trial court framed charge against the appellants/accused at Ex.3, to which they pleaded not guilty and claimed to be tried vide their respective pleas at Ex.3/A and 3/B. Thereafter, in order to prove its case, prosecution examined PW-1 Syed Ali Raza Shah at Ex.05 and produced FIR at Ex.05/A, PW-02 Muhammad Shahbaz at Ex.06, PW-03 Syed Sajjad All at Ex.07, PW-04 Syed Sajjad Hussain Shah, mashir at Ex.09, who produced Danistnama at Ex.09/A, memo of inspection of dead body at Ex.09/B, memo of sealing clothes of deceased at Ex.09/C, memo of arrest and recovery at Ex.09/D, memo of inspection of place of incident at Ex.09/E. PW-05 Dr. Majeed Ahmed Qureshi at Ex.10, who produced police letter and dead body examination form at Ex.10/A and Ex.10/B, post mortem report at Ex.10/C, letter No.710 dated: 30.05.2016 at Ex.10/D. receipt of handing over dead body at Ex.10/E, PW-06Tapedar Syed Khadim Hussain at Ex.11, who produced letter of Mukhtiarkar at Ex.11/A and sketch at Ex.11/B, PW-07 ASI Zulfiquar Ali Arain at Ex.12, who produced DD entry No.19 at Ex.12/A, Lash Chakas form at Ex.12/B, letter dated:26.05.2016 at Ex.12/C, photographs of deceased at Ex.12/D, receipt passed to MLO for receiving the dead body at Ex.12/E, receipt of handing over the dead body of deceased to complainant Ali Raza at Ex.12/F, DD entry No.73 at Ex.12/G, sketch of place of incident at Ex.12/H, photographs of place of incident at Ex.12/I, P.S. copy of letter submitted with Mukhtiarkar for preparation site memo letter at Ex.12/J and photographs of accused at the time of arrest at Ex.12/K and screw driver at Ex.12/K1, PW-08 SIP Umaid Ali Lakho at Ex.13, who produced letter at Ex.13/A, interrogation report of accused Ashok at Ex.13/B, interrogation report of accused Waseem at Ex.13/C, chemical examiner report at Ex.13/D, letter received from chemical examiner at Ex.13/E. Thereafter learned DDPP closed the side of prosecution, vide statement at Exh.16.

5. Then statements of appellants/accused were recorded under section 342, Cr.P.C. at Ex.17 and 18, in which they denied all the allegations levelled against them in prosecution evidence by professing their innocence. However. neither they examined themselves on oath in order to disprove the prosecution case no led any evidence in defence.

6. Learned trial Judge after hearing the learned counsel for the parties and examining the evidence available on record convicted and sentenced the appellants as stated above through impugned judgment. Hence this appeal.

7. Learned trial court in the impugned judgment has already discussed the facts as well as the evidence led by the prosecution in detail and there is no need to repeat the same here, so as to avoid duplication and unnecessary repetition.

8. Learned counsel for the appellants contended that there are material contradictions in the statements of complainant and other prosecution witnesses as such the case of prosecution is shaky and full of doubts; that the witnesses of the present case are interested witnesses being close relatives of deceased; that there were other independent persons admittedly present at the time of alleged incident but the police has malafidely not made them witnesses in present case due to that reason the present case appears to be managed on a fake story; that the deceased was not murdered by the appellants but he died accidental death due to falling of bus excel on his body; that it has come on record that the appellant Ashok Kumar had no intention to commit Qatl-i-amd of the deceased and both appellants have falsely been booked in this case due to the reason that there was exchange of hot words in between the appellants and the complainant party due to which the appellants were implicated in the present case falsely. He also contended that the deceased received only one injury and that too on non-vital part of his body and the life of deceased could have been saved but since the excel of the bus had fallen upon him; therefore, the deceased was not removed from under the bus and he died due to oozing of excessive blood from his body. He finally contended that a false case has been cooked up by the police officials in collusion with complainant party as all belonged to same province of Punjab and involved the innocent persons (appellants) in a murder case though it was a case of accidental death due to falling of excel of bus upon the deceased. He, under these circumstances, prayed that instant appeal may be allowed and the appellants may be acquitted of the charge.

9. Conversely, the learned APG while opposing the aforesaid contentions raised by the learned counsel for the appellants submitted that the names of the appellants with their specific role are mentioned in the FIR; that the prosecution has fully established its case against the appellants beyond any reasonable doubt by producing consistent/ convincing and reliable evidence and the impugned conviction/sentence awarded to the appellants are the result of proper appreciation of evidence, brought on record, which needs no interference. She further submits that the FIR in the circumstances of the case, was lodged promptly; that the evidence of the complainant and the eye -witnesses is in consistence with each other and also corroborated by the Medical Evidence so also by strong circumstantial evidence in shape of recovery of crime weapon i.e. screwdriver/"patch cush" from the possession of appellant Ashok Kumar at the time of his arrest; that the discrepancies pointed out by the learned counsel for the appellants are of minor in nature which can be overlooked and are not at all fatal to the prosecution case; however, she prayed for dismissal of the instant appeal.

10. I have considered the arguments advanced before me and perused the record.

11. As regard the case against appellant Ashok Kumar is concerned, in this regard prosecution has examined complainant Syed Ali Raza Shah (Ex.5), P.W Muhammad Shahbaz (Ex.6) and P.W Syed Sajjad Ali Shah (Ex.7). Complainant Syed Ali Raza Shah in the FIR as well as his evidence (Ex.5) recorded before the trial Court has stated that he used to come at the Urs Mubark of Hazrat Qalander Lal Shahbaz every year. In the last Urs Mubark of Hazrat Qalander Lal Shahbaz in the year, 2016, he, his cousin Syed Manzar Abbas and his friends Shahbaz, Khalid, Sajjad and others had come to Sehwan on a Bus. On 26.05.2016, after attending the Urs Sharif, they were going to Karachi to the Mazar of Hazrat Abdullah Shah Ghazi when at about 08:30 pm, their Bus reached near Lal Bagh, the road was found blocked due to traffic jam and their bus driver tried to come out from traffic jam. In the meantime, a Coaster Van came in front of their bus and one of the passengers of said Coach alighted from the Coach and directed the driver of their Bus to park the Bus at one side so that they may pass their Coach. His cousin Syed Manzar Abbas, who was standing near Bus, asked the said person that there is no way, therefore, how could they pass their Coach. The said person pushed and abused Syed Manzar Abbas. PW Shahbaz also alighted from their Bus and intervened. In the meantime, driver of the Coach having screwdriver/"patch cush" in his hand came and pushed Syed Manzar Abbas and caused screwdriver/"patch cush" blow to Syed Manzar Abbass at his right thigh. Syed Manzar Abbas fell down on the ground and was bleeding. Some persons handled Syed Manzar Abbas, while some persons available at the vardat caught hold of the accused. They tried to shift Syed Manzar Abbas to the hospital and he requested one Suzuki van driver to take them to the hospital but Syed Manzar Abbas died on the way. However, they brought Syed Manzar Abbas to Taluka Hospital, Sehwan, where doctor disclosed that he had expired. Complainant then made telephonic call to PS Sehwan and police reached in the hospital. Complainant told the police that the appellants who committed murder of Syed Manzar Abbas have been caught hold by them and were present in custody of their persons at vardat. Complainant also told police that on enquiry the accused/appellant, who caught hold Syed Manzar Abbas disclosed his name as Waseem and the accused/appellant who caused screwdriver/"patch cush" blow to Syed Manzar Abbas disclosed his name as Ashok Kumar. Complainant then went to PS Sehwan and lodged FIR. Thereafter, eye-witnesses namely P.Ws Muhammad Shahbaz (Ex.6) and Syed Sajjad Ali (Ex.7) were examined and they have fully corroborated the complainant on all accounts of incident. Complainant and P.Ws Muhammad Shahbaz and Syed Sajjad All were put to lengthy cross-examination: however, no fruitful reply could come and their evidence remained unshaken.

12. As regard the case of appellant Ashok Kumar is concerned, there are only some minor contradictions in the deposition of aforementioned witnesses but the same are natural and due to the passage of time after the incident took place. All the PWs (eye-witnesses) have deposed in the same line as of the complainant as such the prosecution has proved its case beyond the shadow of doubt against this appellant. In addition to these witnesses, the prosecution also examined PW-4 Syed Sajjad Hussain Shah, who was mashir of almost all events i.e. arrest, recovery of crime weapon, place of vardat recovery of clothes of deceased etc in the present case and his testimony too remained confidence inspiring and he fully supported the preparation of the all mashirnamas in his presence by investigating officers. The medical evidence is also in the same line to the ocular account as such there is no doubt that appellant Ashok Kumar is the real culprit who caused the brutal murder of deceased Syed Manzar Abbas Shah by causing screwdriver/"patch cush" blow on his right thigh, which was subsequently declared by Medico Legal Officer Dr. Majeed Ahmed (Ex.10), as cause of death due to rupture of femoral artery caused by sharp and pointed object. The prosecution also examined official witnesses Syed Khadim Ali Shah, Tapedar; ASI Zulfiqar Ali Arain, who initially investigated the case and SHO Umed Ali Lakho, who finalized the investigation and filed the charge sheet against the appellants. The testimony of these official witnesses is also in the same line as to the ocular and medical evidence. Though there are some minor discrepancies in the investigation, but the same is least harmful to the case of prosecution, hence can be over looked in the present circumstances of the case. In nutshell, it is not denied that appellant Ashok Kumar was not present at the place of incident and the deceased died an un-natural death. The mere plea of appellant Ashok Kumar that deceased died an accidental death does not appeal to a prudent mind. The case and claim of appellant Ashok Kumar is that deceased Syed Manzar Abbas was died by an accidental death, but this plea has not been taken by this accused/appellant in his statement under section 342, Cr.P.C. nor in this regard any evidence has been brought on record. Further, it has not come on record that appellant Ashok Kumar was implicated in present case due to any previous enmity or personal grudge with the complainant party. In fact, the incident was occurred on a issue of vehicles being came in front of each other and a quarrel took place, and all of a sudden appellant Ashok Kumar caused screwdriver/"patch cush" blow on the right thigh of Manzar Abbas, who fell down and later on died in the way while taking towards hospital; both the parties were strange and not known to each other prior to the present incident and there is least chance of false implication of appellant at the hands of complainant party in present case. It has not come on record that there was any motive with complainant party to falsely implicate the appellant Ashok Kumar in present case. It is necessary to mention that the complainant and other prosecution witnesses were strangers in the city of Sehwan and they had merely come to pay homage to the shrine of Hazrat Qalander Lal Shahbaz and had no ill will against any person; therefore, the plea of appellant Ashok Kumar has no substance and the same cannot be considered to give him any benefit of doubt. Under these circumstances, I have come to the conclusion that the deceased died due the injury caused on his right thigh by appellant Ashok Kumar.

13. So far as the contention of the learned counsel for the appellants that complainant and all prosecution witnesses (eye-witnesses and mashir) are related to the deceased is concerned, it is observed that complainant, eye- witnesses Muhammad Shahbaz and Syed Sajjad Ali while recording their evidence have denied any relationship with each other. Under the circumstances, the evidence of all these eye-witnesses is trustworthy, tangible, convincing and confidence inspiring and corroborated with all types of circumstantial evidence: and, there is no reason to implicate the present appellant Ashok Kumar by letting of the real culprits in a case wherein one innocent person has lost his life.

14. This is a case of murder of one innocent person caused by appellant Ashok Kumar. Since the serious allegation has been levelled against this appellant, which has been proved through consistent and reliable evidence as discussed above and I found no material contradiction in the entire prosecution case so far as the contradictions as pointed out by the learned counsel for the appellants is concerned, the same appear to be of minor in nature and can be ignored. Reliance in this respect is placed on the case of Zakir Khan v. The State (1995 SCMR 1793).

15. During the course of arguments, I have specifically asked the question from learned counsel for the appellants to point out any illegality, perversity or infirmity in the impugned judgment as far as the case of appellant Ashok Kumar is concerned, but he has not been able to answer plausibly and satisfactorily.

16. Therefore, under the circumstances, as discussed above, I have come to the conclusion that the prosecution has fully proved its case against appellant Ashok Kumar beyond any shadow of reasonable doubt.

17. However, as regards the case of appellant Waseem son of Aziz Khan is concerned, I have scrutinized the prosecution evidence carefully and noted that in the FIR only his presence as well as abusing to complainant party at the place of incident is shown; however, while recording their evidence before the trial Court complainant and P.Ws have improved their stance by stating that at the time of incident appellant Waseem had caught hold the deceased whereas appellant Ashok Kumar caused him screwdriver/"patch cush" blow; this improvement clearly shows that appellant Muhammad Waseem was simply available at the place of incident along with main culprit Ashok Kumar but he was involved by the complainant party due to some misunderstanding. During the course of arguments, I have also specifically asked the question from the learned APG to point out any active role of appellant Waseem in the commission of the offence except his presence at the occurrence, she has not replied satisfactorily and even she failed to establish any premeditation of this appellant with appellant/accused Ashok Kumar, hence ingredients of section 34, P.P.C. are not applicable in this case. Therefore, as stated above there is no sufficient/convincing evidence on record that appellant Waseem has made any plan along with the principal accused thus, the prosecution case appears to be doubtful as regard the appellant Muhammad Waseem is concerned, and benefit of the same should be extended in his favour as of right as opposed to concession as was held in the case of Tariq Pervez v. The State (1995 SCMR 1345), wherein it was observed as under:- "It is settled law that it is not necessary that there should many circumstances creating doubts. If there is a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."

18. In view of the above, the instant jail appeal of appellant Ashok Kumar is dismissed; the impugned judgment dated 25.01.2018, passed by the learned Additional Sessions Judge, Sehwan is maintained. As regard the appeal in respect of appellant Muhammad Waseem is concerned, same is allowed as he is entitled to the benefit of doubt, as discussed above; and, he stands acquitted of the charge; his sentence and fine as ordered in the said impugned judgment are set aside. He shall be released from jail forthwith unless he is wanted in any other custody case. JK/A-81/Sindh Appeal allowed.