HIGH COURT
OF SINDH AT KARACHI
Criminal Appeal No.166 of 2015
Confirmation Case No.04 of 2015
Present
Mr.
Justice Naimatullah Phulpoto
Mr. Justice Ghulam Qadir
Leghari
J U D G M E
N T
Date of Hearing: 21st April
2016
Date of Announcement: 11th May, 2016
Appellants: Ali Bux son of Ahmed
Lund and Yousuf son of Ali Dost Lund through Mr. Abdul
Qadir Halepota, advocate
Respondent: The State through Mr. Saleem Akhtar Burriro, Additional
Prosecutor General Sindh
Complainant: Ali Akbar Kingrani through Mr. Muhammad Ashraf Kazi, Advocate
NAIMATULLAH PHULPOTO, J.--- Ali Bux and Yousuf
appellants were tried by learned 1st Additional Sessions Judge, Dadu for the offences under sections 302/114/34, P.P.C. who found appellants guilty for offence under
sections 302(b)/34, PPC and vide judgment, dated 26.06.2015
accused Ali Bux and Yousuf
were convicted under section 302(b)/34, PPC and sentenced
to death. They were ordered to pay fine of Rs.100,000/- each, to be paid to the legal heirs of
deceased as compensation as required under section 544-A, Cr.PC. In case of default
in payment of compensation, accused were directed to suffer S.I.
for six months. Trial Court made reference to this Court for confirmation of
death sentence as required under section 374, Cr.PC. Case of absconding accused
Qurban and Ghulam Nabi was
kept on dormant file. By this appeal, appellants have challenged their conviction
and sentence.
2.
The facts of the case, which have
occasioned this appeal lie within a narrow orbit and may be briefly indicated. On
15.03.2013 at 1930 hours, complainant Ali Akbar lodged his report at police
station Johi, alleging therein that he is Junior
School Teacher. He had four brothers, Nasrullah, was aged
about 40/41 years. It is alleged in the F.I.R. that
about 6/7 years back one Sarwar Lund was murdered at
Karachi and the brother of Sarwar Lund, namely, Qurban Ali, who is absconding accused in this case had
suspicion on Nasrullah, the brother of the
complainant in the murder of Sarwar Lund. It is
alleged by the complainant that suspicion was removed by giving oath on Holy Qura’an to the relatives of Sarwar
Lund, in spite of that, Qurban and others were
annoyed with Nasrullah and used to issue threats that
he would not be spared. It is alleged that on 14.03.2013, complainant along
with his brother Nasrullah, nephews Ghulam Shabbir and Bilawal were going by
foot to bus stop from Johi Town. At 1215 hours, when
they reached at main road, leading from Johi to Dadu, near Taluka Hospital Johi. It is alleged that Nasrullah
was ahead of complainant party. At that time, four persons appeared on two
motorcycles and stopped their motorcycles near Nasrullah.
Accused were identified by complainant party as (1) Qurban
son of Misri, (2) Ali Bux
son of Ahmed, (3) Yousuf son of Ali Dost and (4)
Ghulam Nabi son of Safar, all by caste caste Lund. It is alleged that all the accused were armed
with pistols. Accused Ghulam Nabi instigated
co-accused to kill Nasrullah and at his instigation,
it is stated that accused Yousuf made two straight
fires from his pistol at Nasrullah with intention to
kill, which hit him on left side of posterior ribs, who while raising cries
fell down. It is alleged that accused Qurban Ali
fired upon Nasrullah with intention to kill and fire
hit him at his throat, accused Qurban repeated F.I.R. at Nasrullah, which hit
him on right side of cheek. Regarding accused Ghulam Nabi,
it is stated that he fired from his pistol at Nasrullah,
which hit him at the left side of the chest. While accused Ali Bux made straight fire upon Nasrullah
with intention to commit his murder and fire hit him on the right side of
abdominal region. It is alleged that complainant party raised cries and accused
went away on their motorcycles by raising slogans. Complainant party saw that Nasrullah succumbed to the injuries at the spot.
Thereafter, dead body was taken to Taluka Hospital, Johi. Information of the incident was given to the Johi police by cell phone on the same day viz. 14.03.2013
at 1230 hours (within 15 minutes) in which it was stated that accused Qurban Ali and others by means of pistols have committed
murder of Nasrullah. Roznamcha entry No.14 was recorded by ASI Mir Hasan. Complainant went to the police station and lodged report.
It was recorded against accused vide Crime No.22/2013
on 15.03.2013 at 1930 hours under sections 302/114/34, PPC.
3. After registration of F.I.R.
Investigation Officer inspected place of wardat, collected bloodstained earth
and six empties of 30 bore pistol and sealed the same in presence of mashirs Azizullah and Habibullah. Postmortem
examination of deceased was conducted. IO secured last worn clothes of
deceased, sealed the same. Accused Ali Bux Lund was
arrested on 29.03.2013 in presence of mashirs. Police recovered pistol from
accused Ali Bux, used by him in the commission of
offence. Bloodstained earth, clothes, empties and pistol were dispatched to the
experts for examination and report. On the conclusion of investigation, final
report was submitted against accused on 11.04.2013. Accused Ali Bux was under arrest while accused Qurban,
Yosuf and Ghulam Nabi were
declared as absconders. Accused Yousuf was
subsequently arrested.
4. Case was sent up to the Court of
Sessions. It was made over to learned 1st Additional Sessions Judge,
Dadu for disposal according to law. Case proceeded
against absconding accused under section 512, Cr.PC.
Proceedings under sections 87 and 88 were concluded against them.
5. Charge was framed against accused Ali Bux and Yousuf at Ex.4. Both accused pleaded not guilty and claimed to be
tried.
6.
At the trial, prosecution examined Ali
Akbar (PW.1), Ghulam Shabbir
(PW.2), Bilawal (PW.3), Azizullah (PW.4), Abdul Majeed (PW.5), Mir Hassan (PW.6) and SIP Ahtasham Ali (PW.7).
7. Statements of both accused were recorded
under section 342, Cr.PC in which prosecution allegations have been denied.
Accused Ali Bux has stated that pistol bearing No.31047239 has been foisted upon him. Both accused have
stated that PWs are interested and on inimical terms
with them. Both accused declined to give statement on oath in disproof of
prosecution allegations and did not adduce evidence in defence.
8.
On the assessment of evidence
available on record, the learned 1st Additional Sessions Judge, Dadu found the appellants guilty and convicted them
accordingly. In these circumstances, present appeal has been filed.
9. Mr. Abdul Qadir
Halepota, learned advocate for the appellants argued
that there was delay of 31 hours in lodging of the F.I.R.
without plausible explanation. Eye witnesses of the incident are closely
related to the deceased and interested. It is argued that presence of
eyewitnesses at the time of incident was highly doubtful; no independent person
has been examined by prosecution. It is further contended that injuries have
been specifically attributed to each accused by eyewitnesses and trial Court
omitted to consider possibility of implication of innocent persons. There was
delay of one day in recording statements of eye witnesses under section 161, Cr.PC, it was fatal to the prosecution case. It is contended
that place of concealment of pistol was known to the police prior to its
recovery, such discovery was inadmissible. It is contended that recovery
mashirs are related to complainant. It is also contended that motive, howsoever
strong, cannot provide corroboration to other pieces of evidence, which are
infirm and not worthy of credence. Lastly, argued that concept of benefit of
doubt to accused is deep rooted, there are several circumstances in this case,
which create reasonable doubt about guilt of accused. In support of his
contentions, he relied upon the following cases:
1. 1995 SCMR 599 (Ata Muhammad and another v. The State)
2. 1999 SCMR 1030 (Muhammad Irshad and another v. The State)
3. PLD 1973 Supreme Court 321 (Bagh
Ali & 4 Others v. The State)
4. PLD 1959 Supreme Court (Pak.) 109 (Rehmat
& Others v. The State)
5. 2010 SCMR 1039 (Ishtiaq Masih v. The
State)
6. 1993 SCMR 550 (Syed Saeed Muhammad Shah & another v. The
State)
7. 2010 SCMR 584 (Rahat Ali v. The State)
8. 2010 SCMR 1604 (Mst. Askar Jan & others v.
Muhammad Daud & Others)
9. 1980 SCMR 225 (Rasool Bud &
another v. The State)
10. 1977 PCr.LJ 662 (Karachi) (Ahmed & another v. The State)
11. 1987 PCr.LJ 2173 (State vs. Tariq Mahmood)
12. 1995 SCMR 1321 (Muhammad Ashfaq V. The
State)
13. 1979 PCr.LJ 736 (Karachi) (Nawab & another v. The State)
14. 1981 SCMR 132 (Nawaz Ali and another v. The State)
15. 1999 SCMR 697 (Sheral alias Sher Muhammad v. The State)
16. PLD 1964 (W.P) Karachi 356 (Khursheed Ahmed v. Qabool Ahmed
& Others).
17. 1995 SCMR 1345 (Tariq Parvez v. The
State)
10. Mr. Saleem Akhtar Burriro, learned
Additional Prosecutor General Sindh, argued that complainant Ali Akbar gave
information of the incident to the police within 15 minutes on his mobile and
delay in lodging of the formal F.I.R. has been
explained by the complainant. He has further contended that presence of the
complainant and other eye witnesses by prompt information to police is
established. Mr. Burriro
has contended that ASI Mir Hassan of P.S. Johi has produced Entry No.14
dated 14.03.2013 recorded at 1230 hours at Ex.12/A. He
has argued that delay of one day in recording 161, Cr.PC statements of the eye
witnesses by the IO would not adversely affect the veracity of the witnesses.
Learned A.P.G. argued that during interrogation
accused Ali Bux led the police party and private
mashirs and produced pistol used in the commission of offence. One empty secured
from the place of incident matched with the pistol recovered from the accused. Lastly,
he supported the impugned judgment.
11.
The fact that deceased Nasrullah died after sustaining firearm injuries is proved
from the record. Besides the evidence of eye-witnesses, which we will discuss
at the proper stage, there is evidence of Dr. Abdul Majeed
(PW-5), to this effect. Medical Officer had conducted the autopsy on the dead
body of Nasrullah. The factum of unnatural death of
deceased Nasrullah is not even denied by the learned
counsel for the appellants. From the evidence of the expert, we have come to
the conclusion that death of deceased occurred due to injuries at vital organs
of his body caused by firearm injuries, resulting into cardio respiratory
failure.
12. The evidence against the appellants was
three-fold. Firstly, there were statements of eye-witnesses, namely, Ali Akbar,
Ghulam Shabbir and Bilawal.
Secondly, there was evidence of motive about earlier murder of one Sarwar Lund, brother of accused Qurban
Ali. Thirdly, the recovery of pistols from accused Ali Bux
and evidence of absconsion of appellant Yousuf after the incident.
13.
Bearing in mind the above evidence on
record, now we examine the evidence of complainant Ali Akbar. He has deposed
that 6/7 years prior to this incident, one Sarwar
Lund was murdered in Karachi and the brother of deceased, namely, Qurban had suspicion over Nasrullah.
Despite assurances on Holy Qura’an, accused persons
were not satisfied. On 14.03.2013, complainant along with his brother Nasrullah (now deceased) nephews Azizullah
and Bilawal were going to Johi
to get conveyance for Dadu City. At 1215 hours, they
reached near Main road Johi. He has deposed that at
that time Nasrullah was ahead of them. In the
meanwhile, two motorcycles appeared, two persons were sitting on each
motorcycle. Motorcycles were stopped near Nasrullah.
Complainant party identified those persons, they were Qurban son of Misri, Ali Bux son of Ahmed, Yousuf son of
Ali Dost, Ghulam Nabi son of Safar, all by caste Lund,
r/o Bukhari Mohallah Johi. All accused took out pistols. Complainant deposed
that accused Ghulam Nabi instigated co-accused for
killing Nasrullah. Thereafter, accused Yousuf fired two shots from his pistol to Nasrullah, which hit him on left side of scapula,
Nasrullah raised cries and fell down. Accused Qurban fired from his pistol which hit Nasrullah
at his neck and he repeated second fire which also hit him. Accused Ghulam Nabi fired from his pistol, which hit Nasrullah
on left side of chest. Accused Ali Bux fired from his
pistol, which hit to Nasrullah on right side of his
abdomen. Complainant party raised cries and accused went away while raising
slogans. Nasrullah died at the spot. Complainant
party with help of others brought dead body to Taluka
Hospital Johi and he gave such information to the Johi police station on cell phone. Complainant narrated
incident to Azizullah and Habibullah
and other relatives. They reached at Taluka Hospital Johi. On the information of the complainant, ASI Mir Hassan of P.S. Johi
arrived at Taluka Hospital Johi
along with his staff. After completing necessary formalities and postmortem
examination, dead body was handed over to the complainant party. Complainant
has stated that he had shown place of wardat to ASI
Mir Hassan, who collected six empties of pistols from the spot so also
bloodstained earth. Complainant took dead body to his native place for burial.
On 15.03.2013 he went to police station where he lodged F.I.R.
against the accused and identified accused Ali Bux
and Yousuf, before the trial Court. Ghulam Shabbir (PW-2) was eye witness of the incident. He has deposed
that 6/7 years prior to this incident, one Sarwar
Lund was murdered in Karachi. His brothers had suspicion upon Nasrullah. He has stated that on 14.03.2013 he along with
complainant Ali Akbar, Nasrullah and Bilawal left their village for going to Dadu
and reached at Johi. At about 1215 p.m. when they
reached at main road near Taluka Hospital they saw
four persons appeared on motorcycles and stopped their motorcycles near Nasrullah. Accused persons were identified by him as Ali Bux son of Ahmed, Yousuf son of
Ali Dost, Qurban son of Misri
and Ghulam Nabi son of Saffar,
all by caste Lund, residents of Bukhari Mohallah Johi. They were armed
with pistols. Accused Ghulam Nabi instigated co-accused
not to spare Nasrullah and kill him. On his
instigation, accused Yousuf fired two shots from his
pistol on Nasrullah which hit him at his left
scapula. Accused Qurban fired from his pistol which
hit Nasrullah at his neck,
he repeated second fire which also hit him. Accused Ghulam Nabi
fired from his pistol, which hit Nasrullah on left
side of chest. Accused Ali Bux fired from his pistol,
which hit to Nasrullah on his abdomen. They raised
cries and accused went away while raising slogans. Nasrullah
succumbed to the injuries at the spot. Thereafter, dead body was brought to Taluka Hospital Johi with the
help of public. Complainant informed the incident to Johi
police station on his mobile. On the information of complainant, ASI Mir Hassan of P.S. Johi
arrived at Taluka Hospital Johi
along with his staff, where he completed the formalities and handed over the
dead body to the complainant. Thereafter, complainant went to the police
station and lodged F.I.R. He identified accused Ali Bux and Yousuf before the trial
Court.
14. Bilawal (PW-3)
was also eye witness of incident. He has narrated the same facts and attributed
specific role to the appellants in the commission of offence as deposed by
complainant Ali Akbar (PW-1) and Ghulam Shabbir
(PW-2). He has clearly stated that accused Ali Bux
fired upon Nasrullah which hit him to his abdomen.
Accused Yousuf fired from his pistol on Nasrullah which hit him at his left scapula. Accused Qurban fired one shot from his pistol which hit Nasrullah at his neck, he repeated
second fire which hit him. Accused Ghulam Nabi fired
shot from his pistol, which hit Nasrullah on left
side of chest.
15. Despite lengthy cross-examination of above
named three eye witnesses, nothing has been elicited in the cross-examination
to shake their credence.
16. ASI Mir Hassan of
P.S. Johi has deposed that on 14.03.2013 he was
present at police station. He received a call from Ali Akbar son of Muhammad Soomar on landline of P.S. Johi,
who gave information that his brother Nasrullah has
been murdered by Qurban and others by means of
pistols and further disclosed that complainant party was present at Taluka Hospital Johi. ASI made entry No.14 at P.S. Johi on 14.03.2013 at 1230 hours. He produced it at Ex-12/A
and went to the Johi Taluka
Hospital. He inspected the dead body and found firearm injuries on the dead
body. He prepared inquest report in presence of mashirs Azizullah
and Habibullah. Postmortem examination of deceased
was conducted. Thereafter, dead body was handed over to the complainant Ali
Akbar, the brother of the deceased. ASI inspected the
place of incident, just opposite to the Johi Taluka Hospital, on the pointation of the complainant and
collected six empties of 30 bore pistol in presence of mashirs and sealed the
same. IO collected bloodstained mud from the spot in presence of mashirs. He further
deposed that on 15.03.2013 at 1930 hours complainant appeared at police station
and he lodged F.I.R. of the incident against accused Qurban, Ghulam Nabi, Yousuf and Ali Bux. ASI recorded 161, Cr.PC statements of the PWs on 16.03.2013. Complainant produced bloodstained
clothes of deceased to the IO and he secured the same in presence of mashirs
and handed over the case papers to SI Ehtesham Ali of
P.S. Johi for further investigation.
17. SIP Ehtesham Ali has
deposed that he received information on 29.03.2013 that accused Ali Bux involved in the case was available at Kamal Mori, on
such information, he arranged two private mashirs Habibullah
and Azizullah and proceeded to the pointed place and
arrested accused Ali Bux at 1015 hours. During
interrogation accused Ali Bux prepared to produce
pistol used by him in the commission of offence and led the police party at
Grid Station Johi at Chinni
road, where police mobile was stopped by accused Ali Bux
and he led the police and mashirs towards southern side of Grid Station where
he dug out the earth and took out pistol and handed over to the IO, which he
sealed in presence of mashirs. Pistol was bearing No.31047239,
such mashirnama was prepared and property was sealed at the spot. Accused Ali Bux had no license for the pistol. Thereafter,
sub-inspector lodged F.I.R. against accused Ali Bux on behalf of the State. IO sent pistol and empties to
the FSL for examination and report. Previous IO had
already sent bloodstained earth to chemical examiner for report. On the
conclusion of investigation IO submitted challan against accused Ali Bux on 11.04.2013, showing remaining accused Qurban, Yousuf and Ghulam Nabi as absconders. Accused Yousuf,
who was shown absconder in the final report, was arrested on 23.04.2013 and
subsequent report was submitted before the Court. The evidence of the
Investigation Officer has full support of evidence of mashirs and positive
reports of the ballistic and chemical reports. Absconsion
of appellant Yousuf after incident remains
unexplained. The facts of every criminal case depend upon its own facts and
intrinsic worth of evidence, both direct as well as circumstantial evidence
adduced in the case.
18. Mr. Abdul Qadir Halepota, learned counsel for the appellants, has laid much
emphasis upon delay of 31 hours in lodging of F.I.R.
but record reflects that incident had occurred on 14.03.2013 at 1215 hours and
complainant Ali Akbar within 15 minutes gave information to ASI
Mir Hassan of P.S. Johi on his mobile that his
brother Nasrullah has been murdered by accused Qurban and others by means of pistol injuries and stated
that he was taking the dead body to Taluka Hospital Johi. ASI made Entry No.14 on the same day at 1230 hours and produced in
evidence at Ex-12/A. In our considered view, prompt information to police would
eliminate the possibility of concocting false prosecution story and would also
establish presence of complainant and eye-witnesses. Delay in lodging of F.I.R. has been explained that complainant party was busy
in hospital moreover it was caused due to burial of the deceased. In such
circumstances, delay by itself in lodging F.I.R. is
not material in this case. Factors to be considered by this Court are firstly
that such delay stood reasonably explained and secondly that prosecution has
not derived any undue advance through such delay. Honourable Supreme Court of
Pakistan in the case of MUHAMMAD NADEEM alias Deemi versus THE STATE (2011 SCMR
872) held as follows:-
“6. So far as the F.I.R. is concerned, it
was, no doubt, delayed by 17 hours, yet seen in the light of the attending
circumstances of the case, the delay stands explained. It is an established
principle of law and practice that in criminal cases the delay, by itself, in
lodging the F.I.R. is not material. The factors to be considered by the Courts are
firstly, that such delay stands reasonably explained and secondly, that the
prosecution has not derived any undue advantage through the delay involved. The
delay is explained in the F.I.R. itself to the effect
that everyone was busy at the hospital, struggling for the life of the victim.
The possibility of the complainant party arranging for the eye-witnesses is
altogether ruled out because even if so, the occurrence having taken place in
the cricket ground of the city, everything could have been arranged within
minutes. It is proved through the version of the eye-witnesses that occurrence
had taken place in the cricket ground duly supported by recovery memo (Exh. PD), indicating the recovery
of blood from the spot. We believe while concurring with the two Courts that
the prosecution has explained the delay in question.”
19. We have come to
the conclusion that information of the incident was given by complainant to ASI Mir Hassan of P.S. Johi
within 15 minutes of the incident and accused Qurban
had been specifically nominated therein as principal perpetrator of the alleged
incident along with others. It was also mentioned that accused were armed with
pistols. All the above named eye witnesses had made consistent statements
before the learned trial Court on all major particulars of case i.e., date,
time and place of occurrence, despite lengthy cross-examination, their
credibility could not be shaken. The question of false implication of the
appellants in a case like this was quite remote. Medical evidence had confirmed
the date and time of occurrence, weapons used by the appellants, locale of the injuries and the directions of the
fires shot by them as stated by the eye witnesses. Slight variations in the
locales of some of the injuries stated by these witnesses were quite natural.
From the perusal of medical evidence we have found the same to be quite
supportive of the ocular account furnished in this case. Reliance is placed
upon the case of SHARAFAT ALI vs. The STATE (2016 SCMR 28). During investigation pistol was produced by
appellant Ali Bux. Empty matched with Pistol No.31047239 as per report of the Forensic Science
Laboratory. Accused Yousuf
immediately after the occurrence absconded and could not be arrested during
investigation, his conduct showed that he was indeed involved. It is
also a strong piece of corroborative evidence against him. Contention of
learned counsel for the appellants that PWs are
closely related to the deceased and their evidence required independent
corroboration. It is settled law that mere relationship of the PWs with deceased would not be enough to discard their
evidence. In
the case of RAQIB KHAN v.
The STATE (2000 SCMR 163), Honourable Supreme Court
has held as follows:-
“11. The contention
that a witness who is related to the deceased is an interested witness, has
since long been discarded by this Court. It is settled proposition of law by
now that interested witness is the one who has an animus for false charge. Mere
relationship of a witness to the deceased is not enough of a reason to discard
his testimony because such a witness is necessarily not an interested witness
in the true sense of the term. This Court has gone to the extent that even evidence
of interested witness is always not discarded. Reference may be made to the law
laid down by this Court in Niaz v. State (PLD 1960 SC 387) which was reiterated again in Nazir
Hussain v. State (PLD 1965 SC 188). In Aslam and another v. The State (1997 SCMR
1284), a Full Bench of this Court had reiterated the law on this score that
"in the final analysis, it is neither the relationship of the witnesses
with the deceased or that of the P.Ws. inter se nor
in the appropriate cases even their being the interested witnesses that
provided an ultimate guidance for according credence to their testimony. It is
ultimately inherent worth of evidence of a witness that determines his
reliability."
20. The
circumstances attending to this case clearly make out a case of premeditated
murder over previous enmity. In fact the appellants had come well-prepared to commit
murder of Nasrullah due to old enmity. Specific role
has been assigned against them in the commission of murder of the deceased.
Case law cited on behalf of the appellants is clearly distinguishable. No
mitigating or extenuating circumstance has been pointed out for awarding lesser
sentence to the appellants. Death sentence in a murder case is a normal
penalty, Courts should give reasons for lesser sentence as held in the case of DADULLAH and another versus The STATE (2015 SCMR 856), the Honourable Supreme Court of Pakistan has
held as follows:-
“…………… Death sentence in a murder case
is a normal penalty and the Courts while diverting towards lesser sentence
should have to give detailed reasons. The appellants have committed the murder
of two innocent citizens and also looted the bank in a wanton, cruel and
callous manner. Now a days the crime in the society
has reached an alarming situation and the mental propensity towards the
commission of the crime with impunity is increasing. Sense of fear in the mind
of a criminal before embarking upon its commission could only be inculcated
when he is certain of its punishment provided by law and it is only then that
the purpose and object of punishment could be assiduously achieved. If a Court
of law at any stage relaxes its grip, the hardened criminal would take the
society on the same page, allowing the habitual recidivist to run away
scot-free or with punishment not commensurate with the proposition of crime,
bringing the administration of criminal justice to ridicule and contempt.
Courts could not sacrifice such deterrence and retribution in the name of mercy
and expediency. Sparing the accused with death sentence is causing a grave
miscarriage of justice and in order to restore its supremacy, sentence of death
should be imposed on the culprits where the case has been proved.”
21. On the
consideration of entire evidence as discussed above, we are fully satisfied
that the occurrence took place in the manner as alleged by the prosecution.
Appeal has got no merits and is dismissed.
Reference made by the trial Court for confirmation of death sentence is
answered in affirmative.
J
U D G E
J U D G E
Gulsher/PS