2006 PLP 1334 (YLR)

SHAMSUDDIN HISBANI, J.

By this judgment, Criminal Appeal No.137 of 2003, filed by appellant Shehlum Banglani, is being disposed of, which has emerged from judgment dated 5-8-2003, passed by learned Sessions Judge, Mirpurkhas, whereby appellant after conclusion of trial, was convicted under section 302(b), P.P.C., and sentenced to suffer life imprisonment and pay compensation of rupees fifty thousand to legal heirs of the deceased Khan Muhammad under section 544, Cr.P.C., or in default thereof to suffer rigorous imprisonment for six months more. Benefit of section 382-B, Cr.P.C. was extended to him.

2. Briefly, the case of the prosecution is that on 27-11-2000, complainant Dodo, prosecution witnesses namely Muhammad Mehar and Noor Muhammad had gone to Sufi Fakir Town where they met deceased Khan Muhammad who was sitting in shop of Bhalumal. Complainant and the above named witnesses were present outside of the shop of Veermal when at about 1530 hours, they heard cries of the deceased. They saw the appellant Shehlum and absconding accused Nabi Bux causing sharp side hatchet blows to Khan Muhammad deceased. After the commission of the crime, the accused made good their escape. Motive for the occurrence was stated that on account of matrimonial dispute accused were nourishing grudge against the deceased.

3. The injured was removed by complainant to Umerkot Hospital but he succumbed to the injuries. Complainant made the report which was recorded by Muhammad Ayoob, S.H.O., Police Station Umerkot. He prepared inquest report, visited the vardat, recorded statements of witnesses, arrested appellant on 28-11-2000, secured blood-stained hatchet on his pointing and sent the same to Expert. On completion of the investigation, in the manner described above, the charge showing co-accused Nabi Bux as absconding was produced before the competent Court.

4. The prosecution in order to prove its case had produced (8) witnesses including the Medical Officer. Of them, complainant Dodo, Noor Muhammad and Muhammad Mehar furnished the ocular account of the incident. Appellant in his statement recorded under section 342, of the Cr.P.C., denied the allegations and professed his innocence. He did not appear as his own witness on oath but produced six witnesses namely Muhammad Ramzan, Abdul Rauf, Allah Jurio, Nirmal, Jurio son of Arbab and Soofi Muhammad Rafique in defence. ?

5. The trial Court believing the evidence led by the prosecution side on the basis of ocular account which was fully supported by the medical evidence, motive and recovery of weapon used in commission of the crime, convicted the appellant and sentenced him as mentioned in the opening paragraph of this judgment.

6. I have heard Mr. Syed Madad Ali Shah learned counsel for the appellant, Mr. Sher Muhammad Leghari learned State counsel assisted by Mr. Salahuddin Panhwar Advocate for complainant party and examined the material available on the record.

7. Learned counsel for appellant strenuously argued that the presence of eye-witnesses at the scene of offence at the time of the incident was highly doubtful in view of the glaring contradictions and discrepancies in their depositions recorded by the trial Court; that the appellant had no motive to kill the deceased, that the witnesses were closely related to each other and the deceased; that the complainant was declared hostile; that there was delay in reporting the matter to police; the recovery of hatchet was also not proved and thus the prosecution had failed to establish the charge to the appellant beyond reasonable doubt. To substantiate the contentions, reliance was placed on 1972 SCMR 144, PLD 1963 Supreme Court 17, 2000 MLD 991 and 2003 MLD 1196.

8. Whereas learned counsel for the State advanced his arguments supporting the findings arrived at by learned trial Court and contended that the ocular account of the incident furnished by P.Ws. Noor Muhammad and Mehar inspired confidence and their version w2s rightly relied upon by learned trial Court. Learned Advocate for complainant party argued that the presence of complainant and witnesses at the spot at the relevant time was established beyond doubt and that they had no reason to have falsely implicated the appellant in a case carrying capital punishment.

9. I have carefully considered the arguments advanced by learned counsel for parties and minutely perused the evidence on record. The case of the prosecution mainly rest on four pieces of evidence; ocular testimony, motive, medical evidence and recovery of crime weapon/hatchet. It will be beneficial to give a brief resume of the ocular evidence recorded at the trial. The eye-witness account of the incident has been given by P.Ws. Noor Muhammad, Muhammad Mehar and complainant Dodo.

10. P.W.1 Dodo Khan is a relative of the deceased Khan Muhammad and he knew the appellant/accused and the absconding accused Nabi Bux. He had gone to Sufi Town along with P.Ws. Mehar and Noor Muhammad. At about 3 or 3-30 p.m., he heard cries. On commotion many persons collected at the shop of Bhalumal. He found his relative Khan Muhammad lying injured and unconscious. They took the injured to Civil Hospital, Umerkot where he succumbed to the injuries. He went at the police station Umerkot and lodged F.I.R. He produced F.I.R., and deposed that nobody was nominated in the F.I.R. He was declared hostile and cross-examined by learned prosecutor incharge of the case. Surprisingly, in cross-examination, he admitted that the present appellant Shehlum and the absconding accused Nabi Bux caused hatchet injuries to the deceased person who died in the hospital. He identified the appellant Shehlum present in the Court. However, when he was cross-examined by learned defence counsel, he gave an admission that he had not seen the accused persons causing hatchet injuries to the deceased person but they were seen while going away.

11. Evidence of P.W.2 Mehar reveals that he was present in Sufi Town along with complainant and another witness Noor Muhammad when they heard cries from the shop of Bhalumal. They rushed at the scene and saw the appellant/accused and the absconding accused causing injuries to his maternal uncle Khan Muhammad with sharp side of hatchets. The deceased sustained injuries on different parts of the body and went unconscious. The appellant and the absconding accused fled away on motorcycle. They removed Khan Muhammad in injured condition to Hospital, Umerkot. The injured died after about 10/15 minutes. Regarding the motive, he explained that sister of the appellant was married to the deceased Khan Muhammad and due to matrimonial dispute the case was filed in the High Court; and on that account the appellant killed the deceased with the help of absconding accused. He was cross-examined at length but nothing could come out disturbing his veracity.

12. The other eye-witness P.W.3 Noor Muhammad is brother of the deceased Khan Muhammad. His evidence shows that he was present with complainant and P.W.2 Mehar in Sufi Town. They were making purchases from the shop of Veeru Mal when they heard cries of his brother Khan Muhammad from the shop of Bhalumal. They rushed to the scene where they saw the appellant and absconding accused causing hatchet blows to deceased Khan Muhammad. The witnesses asked the culprits not to kill Khan Muhammad but they threatened the witnesses and made their escape good on motorcycle. They found that the deceased received serious injuries and had gone unconscious. They shifted the injured to hospital at Umerkot where he succumbed to the injuries. Regarding the motive, he gave a similar explanation that there was a matrimonial dispute between the deceased and the appellant. He was cross-examined at length by the learned defence counsel but nothing could be elicited from him to dispute his credibility.

13. The ocular testimony is fully supported by the medical evidence. P. W.5 Dr. Cheno Medical Officer Taluka Hospital had found the following injuries on the dead body of the deceased:-- (i) one incised wound on mid of scalp 7 x 1.5 x 2 c.m. bone fractured, brain matter coming out; (ii) one incised wound on right eyebrow vertically 1 x 5 c.m. x skull; (iii) one incised wound on occipital area near right ear 4 x 1 c.m. x bone fractured; (iv) one incised wound on right forearm 3 x 1 c.m. x ulna bone fractured; (v) one incised wound on left hand between little and ring fingers x 4th matacarpal bone fractured measuring 03 x 1.5 c.m. x bone visible.

14. On autopsy, he had found that the skull incised frontal and temporal bone was fractured, occipital bone fractured, brain matter ruptured, membrane ruptured, Cranial cavity full of blood. He opined that the Injury No.1 was sufficient to cause death of the deceased. The injuries were caused by sharp cutting weapon such as axe or knife. In cross-examination he stated that he had not taken sample of blood from the body of the deceased to ascertain his blood group.

15. On the close scrutiny of the evidence produced by the prosecution it would be seen that the ocular testimony furnished a satisfactory account of the incident and it goes unchallenged to the extent that the murder of Khan Muhammad had taken place at the shop of Bhaloomal in Sufi Town at 3-30 p.m., from where the dead body was removed to hospital Umerkot by the complainant party and the F.I.R. was lodged at Police Station Umerkot by complainant Dodo at 5-30 p.m. that is to say within two hours. The F.I.R. shows that Umerkot was 22 kilometers away from the place of the incident. Obviously, when such an incident takes place all of sudden, the relatives are caught in shock, and they had to arrange a conveyance for removing the injured person to the nearest hospital which admittedly was 22 Kilometers away from the scene of occurrence. The evidence shows that the complainant party removed the injured to hospital where he succumbed to the injuries. This was yet another shock for them; however, despite all this the complainant had lodged the report as soon as possible. The delay of two hours counted from the time of incident was thus explained satisfactorily. The contention that it is a belated F.I.R. in the circumstances, is without any substance.

16. The F.I.R. mentions the presence of eye-witnesses at spot at the relevant time. Both the, witnesses namely Mehar and Noor Muhammad, in the evidence have given a consistent account of the incident implicating the appellant and the absconding accused. Both of them have said that the appellant and the absconding accused inflicted hatchet blows to the deceased. The evidence of eye-witnesses has, however, been assailed from the different angles. Learned counsel for appellant contended that the presence of eye-witnesses at the scene of occurrence was highly doubtful as they belonged to a village at some distance from the place of incident. Primarily, when the deceased and the accused persons who did not belong to Sufi Town were present there, it would be unreasonable to question the presence of the witnesses in the same town. It would not be fair to draw a rigid conclusion that a person who does not belong to the place of the incident or its vicinity cannot be accepted as truthful witness merely because he belonged to a different place. In our society we are conscious of the common human behavior that the villagers often go to the nearest town for making purchases of their daily needs. It was, as such, not unusual for the witnesses to be present at Sufi Town. It would be unjustified to discard the explanation offered by them that they were present there for making purchases.

17. The Honourable Supreme Court in the case of Dur Naz v. Yousif (2005 Supreme Court Monthly Review 1996) in more or less the similar circumstances accepted the evidence of witnesses who had left their village in connection with their private work and had gone to town of Nawabshah where the incident took place and it was within their sight that the respondent fired at the deceased. The contention that the witnesses were the chance witnesses was repealed observing as under: -- "Accordingly, we are of the considered opinion that above mentioned witnesses are not chance witnesses but natural witnesses of the incident which is sufficiently established on record. A chance witness is one who appears at the place of occurrence incidentally as per chance. This Court in the case of Muhammad Ahmad and another v. The State and others 1997 SCMR 89, while discussing about chance witnesses has held that when a crime is committed on a public thoroughfare, or at a place frequented by the public generally, the presence of passersby cannot be rejected by describing them as mere chance witnesses, unless, of course, it is found that the witnesses concerned could not give any satisfactory explanation: of their presence at or near the spot at the relevant time or there is otherwise any inherent weakness or contradictions in their testimony."

18. The explanation in the instant case offered by the witnesses is wholly justified; their presence cannot, therefore, be doubted solely on the ground that they belonged to a village far away from the place of occurrence unless there appeared otherwise some infirmity or weakness in their testimony. It was next argued that the eye-witnesses were close relatives of the deceased, their testimony would, therefore, be doubtful and not worth-reliance. Certainly, the Court would look for the most genuine and true evidence to come on record in respect of such serious fact, as the evidence may lead to capital punishment, but it would be difficult to lay down inflexible rule that if a person is killed in presence of his closest relatives, the culprit who committed murder, even if seen and identified in daylight should go scot-free and unpunished. This could never be the spirit and intention of law in any society. The Honourable Supreme Court has fully dealt with the proposition time and again laying down comprehensive guidelines for appreciation of evidence in such circumstances. Reliance is placed of Feroz Khan v. State (2002 SCMR 99) and Abdur Rauf v. State (2003 SCMR 522).

19. Thus, the Court has to assess the instinct value of the testimony of the witnesses of the occurrence on the basis of entire material on record on touchstone of inherent truth of their evidence, as observed in the forgoing authorities and their evidence cannot be discarded merely on the ground of relationship or interestedness.

20. Learned counsel for appellant has in general questioned the credibility of the witnesses placing reliance on the authorities which relate to the cases distinguishable on facts. In the case of Sikandar v. The State (PLD 1963 SC 17) conviction of one appellant was upheld on the basis of solitary evidence of a witness whereas on the basis of same evidence two other accused persons were acquitted which is not the case in the instant matter. In the case of Muhammad Sharif v. Tahir Rehman 1972 SCMR 144, four accused persons were acquitted as the evidence of same set of witnesses was not believed while it was accepted in respect of remaining three accused. Moreover one witness was servant of another witness while another witness was accused in the cross case. Two witnesses were also accused in the cross-case and one of them was a witness in the murder of one Abdul Rehman who had been murdered previously. It was observed that the witnesses were not only connected with the complainant but also inimically disposed towards the accused party on account of murder of one Abdul Rehman. In this way in presence of a number of complex facts and circumstances the evidence was evaluated accordingly. The circumstances in the present case are quite different. As already pointed out in view of the latest dictum of the Honourable Supreme Court that the evidence is to be appreciated on the basis of inherent truth of the testimony of witnesses. Similarly, the facts and circumstances in the cited case Iftikhar v. State (2000 MLD 991) and Shakeel Ahmad v. State (2003 MLD 1196) are remarkably distinct and distinguishable in many respects and are not applicable to the instant case.

21. As regards the version given by the eye-witnesses it would be seen that there is absolute consistency in their evidence about the place of incident which was the shop of Bhalumal in Sufi Town. They have categorically stated that they had seen the appellant and absconding accused causing sharp side hatchet injury on the person of Khan Muhammad the deceased on different parts of his body. Complainant Dodo, however, gave different versions at different stages of his deposition. In such state of affairs at the most it can be said that he could not see the assailants at the time of inflicting blows to the deceased but had seen them while fleeing away. Despite having been declared hostile, I am of the considered view that his evidence too lends support to the prosecution case and in any case it does not damage the consistent version given by the witnesses of occurrence.

22. There are of course some minor discrepancies coming on record during cross-examination of the witnesses but the same being of minor character can hardly be considered sufficient to discredit or discard their version as held by the full bench of Peshawar High Court in the case of Raza Khan v. State (1998 PCr.LJ 530). Learned trial Court has also given due consideration to the evidence led by the appellant in defence and rightly observed that the defence version was not enough to dislodge the evidence rendered by the witnesses of the prosecution.

23. D.W.1; Muhammad Ramzan and D.W.2; Abdul Rauf have given evidence regarding the absconding accused Nabi Bux whose case is not being dealt with instantly. D.W.3 and 4; Allah Jurio and Ntrmal are the adjoining shopkeepers who on commotion got out of the shop and saw a crowd of 70 to 100 persons. At the most their evidence is to the effect that they did not see the appellant and absconding accused causing injuries to the deceased. Obviously, they had come after collection of crowd and had no occasion to witness the actual event of hurling hatchet blows to the deceased which had taken place inside the other shop. Their evidence would not upset the ocular account given by P.Ws. Mehar and Noor Muhammad. Similarly, D.W.5; Jurio son of Arbab is on the point of arrest of appellant and is not relevant against the ocular testimony. The last defence witness Sufi Muhammad Rafique had reached at Vardat after Khan Muhammad deceased had sustained injuries. He stated to have heard that the appellant Shehlum had killed the deceased. As such, his evidence too in no way supports the appellant. There is satisfactory evidence on the point of motive. It has come on record that there was a matrimonial dispute between the appellant and the deceased Khan Muhammad and due to that reason he committed his murder by causing him hatchet blows. ?

24. As regards the recovery of crime weapon, the mashir P.Ws. Abdul Haque and Muhammad Ayoob the Investigating Officer have supported the case on the point of recovery of blood-stained hatchet produced by the appellant. A contradiction was elicited from P.W. Abdul Haque about the length of handle of the hatchet but no such admission could be obtained from the Investigating Officer himself. In any case P.W. Abdul Haque was assertive in saying that it was the same hatchet that was produced by the appellant. There is, however, report of the Chemical Examiner (Exh.21-H) that the hatchet was found stained with human blood. It was not necessary to discard the evidence of recovery of crime weapon.

25. Learned counsel for the appellant argued that the blood collected from the place of incident had not been testified scientifically to find if it matched with the blood on the hatchet and as such the alleged recovery of blood-stained hatchet looses its legal significance and the same could not be made basis for recording conviction of the appellant. No doubt, the evidence so collected would be admissible within the meaning of Article 164 of the Qanun-e-Shahadat Order, 1984, which allows the production of such evidence having become available because of modern devices or techniques. Nevertheless, lack of application of modern devices does not make the investigation doubtful.

26. The entire evidence ocular as well as corroborative read together fully establishes the charge against the appellant. I am of the considered view that the prosecution has proved the guilt of the accused/appellant beyond shadow of doubt by producing reliable and faith inspiring evidence, therefore, learned counsel for the Appellant has not been able to persuade me to interfere with the judgment passed by learned Sessions Judge, Mirpurkhas.

27. Consequently, the appeal fails and is hereby dismissed. The sentence awarded to appellant Shehlum is maintained. H.B.T./S-25/K???????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.