2021 PLP 20 (YLRN)

ABDUL MOBEEN LAKHO, J.--This Criminal Appeal is directed against the impugned judgment dated 02.04.2018 passed by the learned Additional Sessions Judge-IV, Karachi West, in Sessions Case No. 509 of 2009, bearing Crime No.244 of 2009, Police Station Peerabad, Karachi, registered under sections 302, 109 and 34, P.P.C.; whereby appellant was convicted and sentenced to imprisonment for life and to pay fine of Rs.5,00,000/- (Rupees Five Lacs Only) to the legal heirs of deceased; in case of default in payment of fine to suffer simple imprisonment for six months more. The benefit of section 382-B, Cr.P.C. was also extended in favour of the appellant.

2. Briefly, the prosecution story as narrated in the FIR lodged by complainant Karim-ur-Rehman, resident of Katchi Abadi, Frontier Colony No.2, Ghousia Mohalla Islam Chowk at Police Station Peerabad, who is in the business of sale of spare parts of vehicles on cart. On the night of incident, he was sleeping at his house along with his wife and children, his father Gul Karim was also sleeping with his wife and children in another room. At about 04:00 a.m., suddenly he heard a gun fire he woke up and came out from his room and saw that his father had sustained bullet injury on his forehead and blood was oozing and he was lying on the ground. His mother who was sleeping with his father and sisters had woke-up and they disclosed to complainant that they had seen one person/culprit who fired upon father of complainant. The complainant also saw that one person who was wearing black shalwar Kamees, armed with pistol running out from the door of the house. On hearing fire reports, people of mohalla also came out from their houses. The said person had entered into the house of one of his relative after incident and after changing the shirt/clothes came out of that house and was trying to make his escape good on a motorcycle No.KBX-5817, parked in-front of the house of complainant but he was apprehended by the mohalla people namely Fazal-ur-Rehman son of Abdul Jalal and Ameer Muhammad son of Meer Jan. The present accused was brought to PS, where the complainant lodged FIR of the incident. It is further stated in FIR that complainant and his mother Zar Barad identified the apprehended persons to be same person namely Tufail Khan son of Khitab Gul, who had entered into their house and fired upon the deceased, father of complainant.

3. To verify these facts the I.O. during the investigation investigated the accused Tufail Khan who revealed that he was forced to commission of this offence by the co-accused Mst. Nargis (absconder). That Mst. Nargis forced him and co-accused Nawabzada (absconder) to commission of this offence and to take away Rs.70,000/- which the deceased had received in V.C/Committee by scaling the wall which he did so and entered into the house of the complainant along with co-accused Nawabzada son of Mohammad Zada. She also provided pistol to them. He disclosed during investigation that at the time when he entered the room of the deceased and switched on the light, the deceased Gul Karim woke up who was sleeping with his wife who also woke up, Gul Karim shouted (who is there), accused Tufail asked the deceased for money and when the deceased tried to apprehend accused he opened fire which hit the head of the deceased and he fell down on the ground. After commission of this offence the accused along with co-accused Nawabzada (absconder) went to the house of the Mst. Nargis Khala to hide the weapon leaving the bike near the house of the deceased. When Mst. Nargis demanded for her share of the stolen money, accused Tufail narrated the whole story to her who later on provided him with the Shalwar Kameez in blue color of her and other son which he wore and went to the house of the deceased to pick up the bike with the co-accused Mst. Nargis where people had already gathered as Gul Karim had expired. He started the motorcycle, Mst. Nargis sat behind him he was apprehended by the mohallah people along with co-accused Mst. Nargis outside the house of the complainant, he was taken to the wife of the deceased Gul Karim for identification who identified him to be the same culprit who entered the house and shot her husband on his head.

4. At trial after supplying of copies to both accused, the formal charge was framed against both Tufail and Nargis at Ex.03, to which they pleaded not guilty and claimed trial. However, during trial co-accused Nargis jumped the bail, as such she was declared as proclaimed offender and trial commenced against only the present appellant/accused.

5. In order to prove the charge against the accused, the prosecution examined PW-1 MLO, Dr. Muhammad Saleem at Ex.12, who produced postmortem report of deceased Gul Khan as Ex.12/A and cause of death certificate as Ex.12/B. PW-2, Complainant Karim-ur-Rehman was examined at Ex.13, who produced mashirnama of search, amount and recovery of motorcycle as Ex.13/A, FIR at Ex.13/B and mashirnama of place of incident/recovery at Ex.13/C. PW-3 Ameer Muhammad Khan was examined at Ex.14, who produced mashirnama of inspection of dead body at Ex.14/A, inquest report at Ex.14/B and receipt of dead body at Ex.14/C. PW-4 Mst. Zar Baraq was examined at Ex.15. PW-5 Fazal-ur-Rehman was examined at Ex.16. PW-6 Saif-ur-Rehman was examined at Ex.17, who produced mashirnama of arrest at Ex.17/A. The prosecution gave up PWs Umerzada and Fazal Ghani vide statement at Ex.18. During the trial, it was revealed that Investigating Officer (I.O.) SIP Haleem Shah was martyred, hence prosecution examined PW-7 SIP Ghulam Mustafa at Ex.19, who was well conversant with him as well as his handwriting and signature, he produced letter issued by I.O./SIP Haleem Shah to Chemical Examiner, letter for approval of SSP for sending the case property to FSL, letter to Incharge FSL, FSL report, chemical examiner report, two letters written to women police station, roznamcha entry, sketch of site, memo of arrest and recovery at Ex.19/A to 19/J respectively. He verified signatures of deceased I.O. on all the documents brought on record. Thereafter, prosecution side was closed, vide order dated 11.07.2015 at Ex.21.

6. Statement of the accused under section 342, Cr.P.C. was recorded at Ex.22 applicant was convicted vide judgment dated 21.12.2015. Being aggrieved with said judgment appellant preferred appeal before this Court, which after hearing was remanded back vide Judgment dated 21.11.2017 with directions to pass afresh Judgment after recording statement of appellant/accused under section 342, Cr.P.C. After the remand fresh statement of accused was recorded, questions were put to accused from the entire incriminating evidence brought by prosecution on record. Appellant/accused denied the allegations and claimed innocence. However, neither he examined himself on Oath nor produced any witness in his defence.

7. Thereafter, trial Court after hearing the learned counsel for parties and scrutinizing the evidence available on recode convicted and sentenced the appellant/accused as mentioned supra, vide impugned judgment dated 02.04.2018, hence this appeal.

8. Mr. Ibrahim Abro, advocate, representing appellant contended that impugned judgment is the result of misreading and non-reading of the evidences available on record; learned counsel argued that the impugned judgment is a nullity in the eyes of law and is not sustainable and requires interference by this court; that nothing has been recovered from the possession of the appellant; that trial court has failed to consider that at the time of arrest, the present appellant was just aged about 14 years and since 04.05.2009 he is in jail without any commission of crime with mala fide intentions of complainant; that learned trial court has failed to consider that there is mala fide intention to police; that the judgment of the learned Judge is not speaking one and treated the above matter as like policy matter and without touching the merits of the case gave judgment against the appellant; that learned trial court has not appreciated the entire evidence on record while the same is sufficient to acquit the appellant; that there are series of material contradictions in the statement of prosecution witnesses which have been overlooked; learned counsel further contended that the impugned judgment suffers from material irregularities and illegalities committed in the impugned judgment which requires interference. No clothes were recovered from present accused in black or blue all the witnesses were interested witnesses in the case of recovery of pistol the accused was acquitted. Only human blood was detected without any DNA being conducted in memo of recovery dated 04.05.2009 the empty which was recovered from the place of incident which was not sent for F.S.L and was kept with the police for seven (07) days which was sent on 10.05.2009 which was in the custody of the I.O. during this period. Lastly learned counsel for the appellant contended that the impugned judgment may be set aside and the instant Criminal Appeal may be allowed and convict appellant may be acquitted of the charged offence. In support of his arguments he has relied upon the case of (i) Nazeer Ahmad v. Zaheer Ahmed (2020 YLR Note 15), (ii) Gohar Khan v. The State (2020 YLR 195), (iii) Farooq v. Musavir Ahmed and 3 others (2020 PCr.LJ 328) and (iv) Muhammad Asif v. The State (2017 SCMR 486).

9. Mr. Zahoor Shah, Deputy Prosecutor General, Sindh contended that the impugned judgment is well reasoned and is sustainable under the law; that the impugned judgment is the result of deeper appreciation of the evidence; that the impugned judgment do not warrant any interference by this court; that the impugned judgment is based on the evidence which prosecution was able to collect and the report of chemical examiner is also positive, which proves the guilt of the appellant. Lastly learned DPG contended that the impugned judgment may be upheld and the instant Criminal Appeal may be dismissed.

10. I have heard the learned counsel for the parties and gone through the relevant law cited at bar with their assistance.

11. As regards to the unnatural death of the, deceased, the prosecution examined PW-1 MLO Dr. Muhammad Saleem of Abbasi Shaheed Hospital Karachi, to whom the police had dispatched the dead body of Gul Karim for postmortem, who deposed that 04.05.2009 at about 08:30 am SIP Aurangzeb of Police Station Peerabad referred to him a dead body of Gul Karim for conducting the postmortem examination and report. He started the postmortem examination on the same day and found following injuries: SURFACE INJURIES:

1. Lacerated fire arms would of entry 0.5 cm x 0.5 cm rounded shape with inverted margins at left side forehead. Lacerated fire arms would of exit 01 cm x 01 cm rounded shape with everted margins at left occipital region. INTERNAL EXAMINATION:

1. HEAD: Scalp reflected the multiple fractures seen in skull vault on the cranial cavity the collection of blood in the cranial with ruptured of Meningies and vessels of brain. Brain matter found scattered. Chest, Abdomen and Neck: No mark of injury seen. CAUSE OF DEATH: Death occurred due to head injury leading to cardio respiratory failure resulted by fire arm injuries. In view of the evidence of MLO, there is no doubt that the accused was murdered by fire arm.

12. The case of the prosecution purely rests upon the statement of the only eye-witness Mst. Zar Baraq (PW-4) she being the wife of the deceased as such is a natural witness.

13. The case of the complainant is that he was present at the house at time of the incident which took place on 04.05.2009 at 04:00 hours. According to story narrated by him he was sleeping with his family in adjacent room in same house when he heard firing he came out from his room and saw that his father had received the bullet injury on his head and saw a person wearing black clothes running towards the door. In the evidence he admitted that he did not see this person shooting his father who was wearing black clothes. He only saw him running towards the door. He in his evidence has also deposed that the accused Tufail was apprehended immediately after the incident by the mohallah people when he was with lady co-accused Mst. Nargis, when she was apprehended she disclosed that the accused Tufail entered the house of the complainant and committed the murder of deceased Gul Karim.

14. It is by now settled principle of law that ocular account in such cases plays a decisive and vital role and once its intrinsic worth is accepted and believed then the rest of the evidence, both circumstantial and corroboratory in nature, would be required as a matter of caution. The apex court is this regard is of the view that even if evidence of only one eye-witness if is trustworthy, confidence inspiring and truthful is enough to bring home the guilt of the accused.

15. PW-4 Mst. Zar Baraq the only eye-witness in her examination-in-chief deposed as follows: - This incident took place about four years and ten months back, it was about 3.00 a.m. of the night. The accused had trespassed our house by jumping over the wall. At that time we all were sleeping. The accused entered in our room and switched on the bulb on which my husband awakened and asked who had switched on the bulb. I then with intention to verify as to who had switched on the bulb. At that moment the accused appeared and pointed the pistol on the head of my husband and fired upon him. After that the accused had started to run away. I also came out of the room behind him in the courtyard. The accused had succeeded to run away and I went inside my room where I found my husband lying on the earth and died. I raised cries and called my son Abdul Karim. The accused was wearing black color clothes when entered in my house and then he came back to take his motorcycle he was in changed clothes. My son and relatives had apprehended accused by saying that the same motorcycle is standing outside our house and involved in the crime. My relatives have taken the accused inside the house to show the accused to me for identification. I had identified the accused but no one had believed me. However, when his clothes were checked he was wearing black color clothes under the changed clothes on which all the persons had believed that the same is accused. My son had lodged the FIR. Police had come and recorded my statement under section 161, Cr.P.C. Accused Tufail present in the court is same.

16. Being the wife of the deceased PW-4 claims to have seen the accused firing upon her husband resulting in his death. The task before me is to analyse the evidence of the wife PW-4 the only eye-witness and to see whether her evidence is confidence inspiring, trustworthy and truthful, she being the wife of the deceased becomes a natural witness her presence at the time of incident i.e. 4:00 a.m. in the morning also becomes but natural. No question was put to her in cross-examination to prove that she was present or not sleeping with her deceased/husband at the time of the incident, giving a shout out in the manner to call her son the complainant who was sleeping in the adjacent room was enough to prove her presence at the time and place of the incident. Since the light of the room was switched on she had a clear view of the appellant at the time of the firing on her husband she had seen him wearing black color clothes since the incident took place in the bedroom it cannot be said that she saw him from distance nor any question was put to her in this regard. In fact appellant was identified when brought to her after being the apprehended by the mohallah people. The defence could not shatter the evidence of the PW-4 in the lengthy cross-examination and no contradiction was brought on record to suggest that the evidence of the PW-4 could be disregarded in all material aspects. The evidence of Mst. Zar Baraq (PW-4) is straight forward, consistent, trust worthy and corroborating with other witnesses specially the medical evidence. The accused in this respect could not come out with any plausible reason with regard to his presence at the place of incident at early hours of morning and also could not give any reason in 342, Cr.P.C. statement as to why his motorcycle was parked near the house of the deceased at 04:00 a.m. in the morning he also could not furnish any reason for his wearing black underneath blue color clothes.

17. It is settled principle that if the court is satisfied about the truthfulness and direct evidence, the requirement of the corroborative evidence would not be of much significance in that, as it may as in present case eye-witness account of Mst. Zar Baraq which is un-impeachable and of confidence inspiring character. She is not a chance witness. She gave her 161 statement in a timely manner. It may also be observed that Mst. Zar Baraq who has no reason or enmity to implicate the present accused. The veracity of Mst. Zar Baraq therefore could not be discredited in the lengthy cross-examination especially keeping in mind that her presence has not been challenged in any manner whatsoever. As such I find the evidence of the PW-4 to be reliable, trust worthy and confidence inspiring and believe the same. Reliance is placed on {(Muhammad Ehsan v. The State) 2006 SCMR 1857} wherein it was held that: "This Court has time and again held that even testimony of single witness if found to be reliable, confidence-inspiring and unimpeachable same would be sufficient to base conviction. It is not necessary that in each and every case there should be more than one witness for the purpose of basing conviction considering that fact also that is not the quantity of evidence but the quality of evidence on the basis of which conviction is to be based."

18. To further corroborate the evidence, the police on 10.05.2009 recovered on pointation a pistol concealed underneath the stone in the street situated in front of house of Khala Nargis the absconding co-accused near Lal baz Chowk Frontier Colony No.2 but no question was put to the witness of recovery with regard to the factum of recovery. Infact the accused in his 342, Cr.P.C. statement had admitted the recovery of the weapon but his defence was that he was acquitted in that case.

19. Now turning to the recovery of weapon, pursuant to the disclosures made by the appellants/accused the crime weapon was recovered on pointation of the accused and the empties secured from the place of occurrence were sent for the examination has been produced as Exh:19/D which shows that the crime empties were fired from the pistol recovered on pointation of accused Tufail Khan in pursuance of the disclosures made by the appellant.

20. Furthermore all the prosecution witnesses supported the case of the prosecution on all the aspects of the case and the defense could not point out any discrepancy or infirmity to dent the case of the prosecution. The defence also failed to prove that there is any enmity because of which the prosecution witnesses deposed falsely against the accused in the present case. The other PWs also corroborative themselves in all the material respect with no major contradictions. Reliance is placed on (Niazuddin and another v. The State) 2011 SCMR 725.

21. As far as the lodging of the FIR is concerned the complainant without wasting any time had promptly reported the incident on the same day without even waiting for the postpartum report i.e. the incident took place on 04.05.2009 reported on the same day @ about 8:00 a.m. and the body was taken to the hospital at about 06:30 excluding the possibility of due deliberation and consultation.

22. In view of the confidence inspiring, straight forward, trustworthy and truthful evidence of PW-4, it is clear that accused is not resident of the locality, where incident took place and he failed to explain about his presence at that time satisfactorily. The accused was found wearing the same cloths, which he was wearing at the time of committing murder of deceased Gul Karim and was seen by complainant and his mother. The present accused Tufail Khan was not known to complainant or PWs, hence there was no motive for the complainant party to involve the present accused in this case. The accused Tufail Khan was indentified by eye-witness Mst. Zar Baraq as the same person who fired upon the deceased Gul Karim. During cross-examination learned defence counsel had not put any question to witness about the false implication of present accused.

23. Based on the above discussion, I do not find any merit in the instant appeal, therefore, the impugned judgment is upheld and the convictions and sentences awarded by the trial Court to the appellant hereby maintained and appeal is dismissed. MH/T-15/Sindh Appeal dismissed.