2017 P Cr (PLP)

MUHAMMAD IQBAL MAHAR, J.

Through instant appeal, the appellant has challenged the judgment dated 13.10.2015 passed by learned IInd Additional Sessions Judge, Shaheed Benazirabad in Sessions Case No. 419/2014 arising out of Crime No.13/2014 of P.S. 60th Mile, whereby he has been convicted under sections 302(b) and 311, P.P.C. and sentenced to death with direction to pay Rs.100,000/- and Rs.25,000/- respectively to the heirs of deceased by way of compensation under section 544-A, Cr.P.C. Benefit of section 382-B, Cr.P.C. was however, extended to the appellant.

2. Relevant facts are that on 30.03.2014 at 0600 hours, SIP Maqsood Ahmed Channa left police station along with his subordinate staff vide entry No.14 for patrolling in private vehicle. During patrolling when he reached at 60th Mile at Kamal Shar Bus stop where he received spy information that in village Muhammad Ibrahim Lund appellant/accused Allahdino Lund has declared his daughter as Kari and intends to kill her. On such information, the complainant party proceeded towards village Muhammad Ibrahim Lund and reached there and heard conversation of some persons that the deceased was Kari. At about 0700 hours the Police party reached at the house of appellant/accused Allahdino and saw two persons strangulating one girl while one person causing injuries to her with Khero (spade). Two co-accused persons, seeing the Police, left the girl and ran away along with Dandas while the appellant/accused was apprehended along with Khero. The girl succumbed to the injuries in presence of police. On inquiry the arrested accused, disclosed his name as Allahdino son of Hamzo Khan Lund and further disclosed that the deceased was his daughter and her name was Shahzadi. Due to non-availability of private mashirs, complainant made ASI Bahadur Khan and HC Nisar Ahmed as mashirs and conducted personal search but nothing was secured except his clothes. The complainant found the dead body sustaining injuries on her body. Complainant secured blood stained earth and sealed the same, he prepared mashirnama of arrest of accused, inspection of dead body and securing blood stained earth. The dead body was sent to PMCH, Nawabshah for post mortem examination and report through ASI Bahadur Khan. The complainant searched for the unknown accused but could not find them and brought the arrested accused and property at police station where he lodged the FIR on behalf of State.

3. After usual investigation, the investigating officer submitted challan against appellant/accused Allahdino before the Court of law.

4. Learned trial Court after completing legal formalities framed the charge against the appellant/accused at Exh.2 to which he pleaded not guilty and claimed trial.

5. Prosecution in order to prove its case, examined complainant SIP Maqsood Ahmed Channa at Ex.4, he produced mashirnama of arrest, inspection of dead body, recovery of blood stained earth and recovery of Khero (Spade), Danistnama, FIR, roznamcha entry, mashirnama of recovery of blood stained clothes of deceased and chemical examiner's report at Ex.4-A to 4-F respectively, P.W ASI Bahadur Khan Brohi at Ex.5, he produced receipt of dead body at Ex.5-A, PW lady Doctor Farzana Memon at Ex.6, she produced post mortem report, chemical examiner's report, final post mortem report and Lash Chakas Form at Ex.6-A to D, PW Tapedar Sikandar Ali at Ex.7, he produced sketch of place of incident at Ex.7-A. Thereafter, learned ADPP closed the side of prosecution vide statement at Ex.9.

6. Statement of accused was recorded under section 342, Cr.P.C. at Ex.10, the appellant/accused denied the allegation and claimed his innocence. However, neither he examined himself on Oath as required under section 340(2), Cr.P.C. nor produced any witness in his defence.

7. Learned counsel for the appellant/accused contended that the prosecution story, as setup in the FIR, appears to be absurd, unbelievable, false and baseless; that there is unexplained delay of more than five hours in lodging the FIR which is fatal to the prosecution; that the alleged incident is said to have taken place in the village but except police personnel no person from the village has been cited as witness; that the case of prosecution is that two accused persons seeing the police went away but police did not arrest them and falsely involved the appellant/accused in the case; that there appears no relevancy of application of section 311, P.P.C. to the facts of the case; that there are major contradictions in evidence of P.Ws which have not been considered by learned trial Court; that the complainant has acted in duel capacity as complainant as well as investigation officer which shows bias against the appellant/accused and personal interest in the case for involving him in a false case; that this is a case of pre-investigation as a joint mashirnama of arrest, place of incident, securing blood stained earth, dead body, recovery of crime weapon was prepared much before registration of the FIR, which is fatal to the prosecution case; that the alleged ocular version is in conflict with the medical evidence which amply proves that the alleged eye-witnesses were not present at spot at psychological moment; that the prosecution has failed to prove its case against the appellant/accused and the impugned judgment passed by learned trial Court is against the law and facts of the case, hence is liable to be set aside. In support of his arguments the learned counsel for the appellant relied upon case of Mst. Naseeban Khatoon and another v. The State (2014 YLR 899), Mst. Shazia Parveen v. The State (2014 SCMR 1197), Nazar Muhammad v. The State (1996 PCr.LJ 1410), Iqrar Hussain and others v. The State (2014 SCMR 1155), Ghulam Murtaza v. The State (2010 PCr.LJ 461) and Muhammad Hussain v. The State (2008 SCMR 345).

8. Concluding his arguments, the learned counsel for the appellant/accused contended that if the Court is not persuaded with his arguments regarding the acquittal of the accused, it is a fit case for the reduction of sentence of death to imprisonment for life for the reasons that the appellant/accused is wali (father) of the deceased and there were two other accused who strangulated the deceased and as per post mortem report the cause of death is throttling and not the injury allegedly caused by appellant.

9. The learned DPG while refuting the contention of learned counsel for the appellant submitted that the prosecution has established the guilt of the appellant by producing cogent and concrete evidence; that the appellant/accused was caught red handed at the spot by the complainant party along with blood stained crime weapon and the dead body was also recovered from his house; that the evidence which has come on record has been appreciated properly and is in accordance with the settled principles of law; that the eye-witness account is in consonance with the medical evidence and thus has rightly been relied upon by learned trial Court. He maintained that the prosecution has proved the guilt to the hilt by producing forthright eye-witness account duly supported by circumstantial and medical evidence, therefore, according to him the impugned judgment does not suffer from any infirmity.

10. We have heard the learned counsel for the appellant as well as learned Deputy Prosecutor General at some length, have given anxious consideration to their arguments and have also scanned the evidence available on record.

11. Admittedly the incident has taken place in the house of appellant/accused, deceased Mst. Shahzadi was his daughter and was declared as KARI, role of causing incised injury with Khero (spade) is attributed to him and he was apprehended at spot along with crime weapon. Not disputing the death of deceased in unnatural way inside the house of appellant/accused was/is itself a sufficient circumstantial evidence thereby the burden stood shifted upon the appellant/accused to disprove that the death, inside his house, was in fact caused by him but by some one else or least not as claimed by prosecution which, prima facie, appellant failed. Further, the prosecution produced four witnesses to prove the case against the appellant-accused including two eye witnesses who fully supported the prosecution version and despite lengthy cross examination by learned counsel for the appellant nothing adverse was brought on the record. Both these witnesses remained consistent on all the material aspects of the case. The ocular evidence is corroborated by circumstantial evidence in shape of recovery of blood stained Khero (spade) from the appellant, blood stained earth and blood stained clothes of deceased, the same were sent to Chemical Examiner and as per Chemical Examiner Report, produced by complainant at Ex. 4-F, all the same were stained with human blood. No doubt some minor contradictions have come on record which do creep due to passage of time but the same can be ignored because it is not the contradiction alone which matters but that (contradiction) to get benefit of doubt initiated must be hitting prosecution with such a force to least shatter root of allegation. In this respect we are fortified by case of Zulfiqar Ahmed and another v. The State (2011 SCMR 492).

12. There is no conflict between the medical evidence and the ocular account. Role of causing Khero (spade) blow is attributed to the appellant. W.M.O. Dr. Farzana Memom, who conducted the post-mortem examination on the dead body of the deceased has fully supported the version of eye-witnesses and as per her evidence injury No.5 is an incised wound which is attributed the appellant/accused. Injury No. 5. "An incised wound measuring about 3 and 4 cms in diameter below the right mandible inner side with mandible bone visible and fractured." Furthermore unnatural death has not been denied and nor any suggestion, contrary to the prosecution version, has been given to the prosecution witnesses/women medical officer regarding death of deceased.

13. Another point in this case is that no suggestion was given to the prosecution witnesses as to why the appellant has falsely been implicated in this case. The witnesses have no enmity with the appellant/accused nor any enmity was even suggested by the learned counsel for the appellant or disclosed by the appellant/accused in statement under section 342, Cr.P.C. while replying the question No:

7. The Question No: 7 and its answer are reproduced as under:- "Why the prosecution witnesses have deposed against you? Ans: "There is no any private witness. All the witnesses are police officials." It has also been held by honourable apex Court in many cases that the police officials are as good witnesses as any other public person unless it is proved that they were biased for some extraneous reason. This view is supported by case of Nur Hussain v. The State (1993 SCMR 1608).

14. Adverting to the contentions of learned counsel for the appellant that there is unexplained delay in FIR, it is stated that apparently there appears no delay in lodging the FIR for the reason that the incident occurred on 30.3.2014 at 7.00 a.m., the complainant arrested the accused, recovered weapon, inspected place of incident and dead body, recovered blood stained earth, prepared such mashirnama, sent the dead body to Hospital and after went to PS where he lodged the FIR and by doing so before lodging the FIR, he has not violated the Police Rules. So far non-examination of people of locality is concerned, it has come in evidence of complainant that none was present at the place of incident. The facts of case laws relied upon by learned counsel for the appellant are totally different than the facts of case in hand.

15. Adverting to the alternate plea of learned counsel for the appellant that death sentence should have not been awarded by the learned trial Court, we agree with him as there are two mitigating circumstances in this case. Firstly, the appellant did not repeat the below as according to medical evidence the deceased had received only one incised injury. Secondly, there were two other accused who strangulated the deceased and as per medical evidence the cause of death is throttling. While relying upon case of Naveed alias Needu and others v. The State (supra) we maintain the conviction of the appellant for offence under section 302(b), P.P.C. but alter the sentence of death of the appellant to imprisonment for life with benefit of section 382-B, Cr.P.C.

16. The death sentence is not confirmed and Murder Reference is answered in the negative. These are reasons of our short dated 21.10.2016. WA/A-143/Sindh Order accordingly.