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