IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Jail Appeal No.S-03 of 2010
Present:
Mr. Justice Amjad Ali Sahito
Appellants: 01). Roshan s/o Muhammad Khan Buriro,
02). Sikandar s/o Ali Bux Buriro, Through Mr.Asif Ali Soomro, Advocate
State: Through Mr. Sharafuddin Kanhar, Addl. Prosecutor General
Date of hearing: 30.04.2018.
Date of judgment: 30.04.2018.
J U D G M E N T
Amjad Ali Sahito, J.- Appellants Roshan son of Muhammad Khan Buriro and Sikandar son of Ali Bux Buriro were tried by learned 4th Additional Sessions Judge, Shikarpur, in Sessions Case No.364/2004, Re.St.Vs. Roshan and others, arisen out of Crime No.83/2004 of Police Station New Foujdari, Shikarpur, for offence punishable u/s.302, 337-H(2),504,148,149 PPC, whereby both of them were convicted and sentenced through impugned judgment dated 09.12.2009, to suffer imprisonment for life for offences punishable under Section 302 (b) PPC, and also to pay fine of Rs.50,000/- each to be paid to the legal heirs of deceased Zawar Muhammad Alam and in case of default of payment of fine, to suffer simple imprisonment for six months more. However, they were extended benefit of Section 382-B Cr.PC.
2. Briefly stated the facts of the case, as depicted in the FIR, are that on 09.06.2004, at about 0730 hours, complainant Gulab son of Zawar Muhammad Alam Buriro lodged FIR with P.S, New Foujdari, Shikaprur, stating therein that in the year 2001, son of Sikandar namely Jinsar Buriro had expired, for which a case was registered against the party of Hashim Buriro, resulting whereof the complainant party had shifted from their village to City. The party of Roshan Buriro used to say that they would kill them. Today i.e 09.06.2004, at morning, he alongwith his brothers Zulfiqar, Sudheer and father Zawar Muhammad Alam aged about 54/55 years jointly came out from their house and sat in a hotel and were taking tea. At about 06.00 a.m, accused namely Roshan son of Muhammad Khan Buriro, 2.Sikandar son of Ali Bux Buriro, 3. Mumtaz son of Ali Bux, 4. Rehmatullah son of Chuttal Buriro, and 5. Irshad son of Ali Bux, duly armed with T.T pistols, resident of village Gundal Buriro, after having formed an unlawful assembly came in the hotel. Accused Roshan Buriro fired at his father Zawar Muhammad Alam with intention to commit his murder, which hit him on his chest, while accused Sikandar Buriro also fired at his father with intention to commit his murder which hit him on his left thigh, who fell down raising cry. The complainant party then raised cries of murder murder, whereupon the rest of the accused after using filthy language made aerial firing upon them and then fled away. Thereafter, his father Zawar Muhammad Alam died within their sight and his dead body was shifted to Civil Hospital Shikarpur for postmortem examination through Coaster. Leaving the above named witnesses over the dead body of the deceased, the complainant came at Police Station and lodged the FIR against the accused.
3. The investigation officer after completion of usual investigation submitted the report u/s.170/512 Cr.PC before the competent Court of law by showing all the accused namely Roshan, Mumtaz, Sikandar, Irshad and Rehmatullah as absconders, who subsequently were arrested by the police and produced before learned trial Court to join their trial.
4. After completing all the formalities, on 10.06.2006 the charge (Exh.7) was framed against all the accused under Section 302,337-H(ii),504,148,149 PPC by the learned trial Court, to which all of them pleaded not guilty and claimed to be tried. Subsequently, accused Rehmatullah was reported to have died inside the prison on 01.12.2006.
5. At the trial, in order to establish accusation against the accused, the prosecution examined PW-01 Complainant Gulab Buriro at Exh.17, he produced FIR of the present case at Exh.17/A. PW-02 Sudheer Ahmed at Exh.18, he produced receipt of dead body at Exh.18/A, attested photo stat copy of mashirnama of arrest and recovery of T.T pistols from accused Irshad and Mumtaz at Exh.18/B, attested photo stat copy of mashirnama of arrest and recovery of T.T pistol from accused Sikandar at Exh.18/C. PW-03 Zulfiqar Ali at Exh.19, PW-04 Bahadur at Exh.20, he produced mashirnama of inspection of dead body, Danistnama, mashirnama of place of incident at Exh.20/A to 20/C respectively. PW-05 Medical Officer Dr.Karamullah at Exh.21, he produced postmortem report on the dead body of deceased Zawal Muhammad Alam at Exh.21/A. PW-06 SIO Azad Ali at Exh.22, he produced report of chemical examiner at Exh.22/A. Thereafter, the prosecution closed its side vide statement at Ex.23.
6. Statements of all the four accused were recorded under Section 342 Cr.PC at Ex.24 to 27 respectively, wherein they denied the prosecution allegations leveled against them and lastly prayed for justice. However, none of them examined themselves on Oath nor examined any witness in their defense.
7. The learned Trial Court, after hearing the learned counsel for the parties and appraisal of the evidence, convicted and sentenced both the appellants while acquitted co-accused Mumtaz and Irshad by extending them benefit of doubt vide judgment dated 09.12.2009. The conviction and sentenced recorded by learned trial Court has been impugned by the appellants before this Court by way of filing instant appeal.
8. Mr. Asif Ali Soomro, learned counsel for the appellants contended that the impugned judgment is against the law and facts of the case; that the present appellants are innocent and have falsely been implicated in this case by the complainant on account of previous enmity; that the complainant and eye-witnesses are related inter-se and inimical towards the appellants; that the evidence of prosecution witnesses is full of contradictions and discrepancies, which are fatal to the prosecution case. He lastly contended that the prosecution has miserably failed to prove the case against the appellants and thus, according to him, under the above mentioned facts and circumstances, both the appellants are entitled for their acquittal. In support of his contention, he relied upon unreported case law viz. Criminal Jail Appeal No.19 of 2007(Sardar Gurgejo vs. the State) and Criminal Jail Appeal No.S-23 of 2011(Mubeen and another vs. the State).
9. Conversely, learned Additional Prosecutor General for the State argued that there was no malafide on the part of complainant to implicate the appellants in this case falsely; that the appellants are named in the FIR with specific role of firing with their respective weapons upon the deceased; that the ocular testimony furnished by complainant Gulab and eye-witness Sudheer Ahmed and Zulfiqar Ali is corroborated with medical evidence. He further argued that the learned trial Court has rightly appreciated the evidence while recording conviction and sentence of the appellants in accordance with law and thus he lastly prayed for dismissal of the instant appeal. In support of his contention he placed his reliance upon case of Saifullah vs. the State which is reported at 2018 PCr.LJ-62, 2). Case of Khush Bar vs. the State, which is reported at 2018 PCr.LJ-63. 3). Case of Muhammad Qasim alias Qasu and others vs. the State, which is reported at 2018 PCr.LJ-490, and 4). Case of Ali Bux and others vs. the State, which is reported at 2018 SCMR-354.
10. I have learned counsels for the parties and perused the record.
11. On evaluation of the material brought on the record, it appears that the case of prosecution mainly depends upon the ocular testimony furnished by the prosecution in shape of statements of complainant Gulab(PW-01) and eye-witness Sudheer Ahmed (PW-02) and Zulfiqar Ali (PW-03), which is corroborated by the evidence of medical officer Dr.Karamullah (PW-05) including circumstantial evidence of rest of witnesses.
12. There can be no denial to legally established principle of law that it is always the direct evidence which is material to decide a fact (charge). The failure of direct evidence is always sufficient to hold a criminal charge as ‘not proved’ but where the direct evidence remains in the field with test of its being natural & confidence inspiring then requirement of independent corroboration is only a rule of abundant caution and not a mandatory rule to be applied invariably in each case. Reliance can safely be placed on the case of Muhammad Ehsan vs. the State (2006 SCMR-1857), wherein the Hon’ble Supreme Court of Pakistan has held that;-
“5. It be noted that this Court has time and again held that the rule of corroboration is rule of abundant caution and not a mandatory rule to be applied invariably in each case rather this is settled principle that if the Court is satisfied about the truthfulness of direct evidence, the requirement of corroborative evidence would not be of much significance in that, as it may as in the present case eye-witness account which is unimpeachable and confidence-inspiring character and is corroborated by medical evidence”.
13. The direct evidence, as detailed above, is in shape of evidence of complainant Gulab and PWs Sudheer Ahmed and Zulfiqar Ali, who are sons of the deceased and reside adjacent to the place of occurrence (hotel) being its real owners, where this an unfortunate incident had taken place in daylight at 06.00 a.m, therefore, the availability of eye-witnesses at the venue of occurrence on the relevant time is quite natural who otherwise categorically stuck with their claim from beginning that they alongwith deceased were taking tea. These witnesses legally cannot be termed to be ‘chance witnesses’ rather would fall within category of ‘natural witnesses’. I would not hesitate that the evidence of a ‘natural witness’ carries worth because first part i.e ‘his presence at spot in support of his claim to have witnessed the incident’ is not disputed. Needless to mention that in absence of first part such a witness would never qualify the requirement, necessary for a direct evidence as required by Article-71 of Qanun-e-Shahadat Order, 1984. There had never been a serious challenge to such claim of these witnesses, hence the status of these witnesses to be natural witnesses was established. Here, I would add that I am conscious that status of one being natural witness would never necessarily stamp him to be the witness of truth but would always be subject to test of reasonableness which too within satisfaction of the Court. In the instant matter, all these eye-witnesses have sufficiently explained the date, time and place of occurrence as well as each and every event of the occurrence in clear cut manners. Besides this, these eye-witnesses have also explained the mode and manner of taking place the occurrence qua the culpability of both the appellants. Although, they were cross examined by the defense at length, wherein the learned counsel for the defense asked multiple questions to shatter their confidence and so also presence at the scene of occurrence but could not extract anything from both of them and they remained consistent on all material points. The parties are known to each other, so there was no chance of mistaken identity of the appellants. I would not hesitate that where the witnesses fall within category of natural witnesses and detail the manner of incident in a confidence inspiring manner then only escape available to the accused is that to satisfactorily establish that witnesses, in fact, are not the witnesses of truth but ‘interested’ one. The reliance in this context is placed upon the case of Abid Ali & 2 others v. The State (2011 SCMR 208) wherein the Hon’ble Supreme Court of Pakistan has held that:-
21. To believe or disbelieve a witness all depends upon intrinsic value of the statement made by him. Even otherwise, there cannot be a universal principle that in every case interested witness shall be disbelieved or disinterested witness shall be believed. It all depends upon the rule of prudence and reasonableness to hold that a particular witness was present on the scene of crime and that he is making true statement. A person who is reported otherwise to be very honest, above board and very respectable in society if gives a statement, which is illogical and unbelievable, no prudent man despite his nobility would accept such statement.
14. An interested witness is not the one who is relative or friend but is the one who has a motive to falsely implicate an accused. The reliance can safely be placed on the case of Lal Khan v. State (2006 SCMR 1846) wherein at Rel. P-1854 it is held as :
… The mere fact that a witness is closely related to the accused or deceased or he is not related to either party, is not a sole criteria to judge his independence or to accept or reject his testimony rather the true test is whether the evidence of a witness is probable and consistent with the circumstances of the case or not.
In another case of Farooq Khan v. The State (2008 SCMR 917) it is observed as:
11. PW.8 complainant is real brother of the deceased who is a natural witness but not an interested witness. An interested witness is one, who has motive, falsely implicates an accused or has previous enmity with the person involved. There is a rule that the statement of an interested witness can be taken into consideration for corroboration and mere relationship with the deceased is not “sufficient’ to discredit the witness particularly when there is no motive to falsely involve the accused. The principles for accepting the testimony of interested witness are set out in Nazir v. The State (PLD 1962 SC 269) and Sheruddin v. Allhaj Rakhio (1989 SCMR 1461).
In another case of Zulfiqar Ahmed & another v. Stat (2011 SCMR 492), it is held as:-
…It is well settled by now that merely on the ground of inter se relationship the statement of a witness cannot be brushed aside. The concept of ‘interested witness’ was discussed elaborately in case titled Iqbal alias Bala v. The State (1994 SCMR 1) and it was held that ‘friendship or relationship with the deceased will not be sufficient to discredit a witness particularly when there is no motive to falsely involve the accused.
Thus, mere relationship of these eye-witnesses with the deceased alone would not support the plea of the appellants that their testimonies are not worth believing. In matters of capital punishments, the accused would not stand absolved by making a mere allegation of dispute/enmity but would require to bring on record that there had been such a dispute/enmity, which could be believed to have motivated the ‘natural witnesses’ in involving the innocent at the cost of escape of ‘real culprits’. I would mention here that where the natural witnesses are blood-relations then normally the possibility of substitution becomes rare. In the instant matter, the complainant and both the eye-witnesses are the ‘sons” of the deceased, hence it does not appear to be believable that all of them agreed in substitution of real culprits with innocents (appellants) when undeniably the time of incident is day-light incident. The reference in this context may be made to the case of Zahoor Ahmed v. The State (2007 SCMR 1519) wherein the Hon’ble Supreme Court of Pakistan has observed that:-
6. … The petitioner is a maternal-cousin of the deceased, so also the first cousin of the deceased through paternal line of relationship and thus, in the light of the entire evidence it has correctly been concluded by the learned High Court that the blood relation would not spare the real culprit and instead would involve an innocent person in the case. Further it has rightly been observed that it was not essential for the prosecution to produce each of the cited witnesses at the trial.
15. Moreover, nothing has come on record by the defence while enjoying opportunity of cross-examination as well leading defence, which could make it believable that there had been such a grave reason for ‘sons” to involve the appellants falsely at the cost of safe escape of killer of their real father. Moreover, nothing came out from the record which may reflect that the deep rooted enmity was existing between the parties. Thus, I find no substance in such plea of the appellants.
16. The minor discrepancies in statements of all these eye-witnesses are not enough to demolish the case of prosecution because the discrepancies always occur on account of lapse of time which can well be ignored. The reference is made to the case of Zulfiquar Ahmed & Ors (2011 SCMR 492). It is not the discrepancy or discrepancies which could be pressed for an acquittal but the defence has to bring on record the contradictions which too should be of a nature to cut at root of the prosecution towards their presence and manner of incident. Reference is made to the case of Ravi Kapur v. State of Rajhistan (2013 SCMR 480) wherein it is observed as:-
It is a settled principle that the variations in the statements of witnesses which are neither material nor serious enough to affect the case of the prosecution adversely are to be ignored by the court…
It is also a settled principle that statements of the witnesses have to be read as a whole and the court should not pick up a sentence in isolation from the entire statement and ignoring its proper reference, use the same against or in favour of a party. The contradictions have to be material and substantial so as to adversely affect the case of the prosecution. Reference in this regard can be made to ….
17. Furthermore, complainant Gulab (PW-01) in his evidence revealed that appellant Roshan directly fired pistol shot upon deceased Zawar Muhammad Alam, which hit him on his chest, subsequently appellant Sikandar fired at deceased which also hit him on his left thigh, resultantly the deceased fell down and died at the spot and his version finds support from the evidence of eye-witnesses Sudheer Ahmed(PW-02) and Zulfiqar Ali(PW-03). The ocular account furnished by above said eye-witnesses is substantiated with the medical evidence adduced by medical officer Dr.Karmaullah(PW-05), who conducted postmortem on the dead body of deceased Zawar Muhammad Alam and found the following the injuries;-
01. One LTP wound measuring 0.5 cm in diameter present over upper 1/3rd of left side of chest near sternum with inverted margins (entry wound).
02. One LTP wound measuring 0.1 cm in diameter present over middle 1/3rd of left side of chest posteriorly with everted margins (exit of entry No.1)).
03. One LTP wound measuring 0.5 cm in diameter with inverted margins present over upper 1/3rd of left thigh anteriorly (entry wound).
04. One LTP wound measuring 0.1 cm in diameter with inverted margins present over left buttock (exit of entry No.3).
All the injuries were caused by discharge from fire-arm and were anti-mortem in nature. The injury No.1 and 2 were sufficient to cause death in ordinary course of life. The probable time between the injury and death was instantaneous. The investigation officer visited the place of incident and collected empties of T.T pistol and blood stained earth from there under a mashirnama, which were sent to the office of Chemical Examiner, Sukkur at Rohri, and received therefrom such positive report at Exh.22/A. Thus, from the above evidence, it is suffice to say that death of deceased Zawar Muhammad Alam was unnatural at the hands of both the appellants. In this context, the reliance is placed upon case of Ali Bux and others vs. the State(2018 SCMR-354), wherein the Hon’ble Supreme Court of Pakistan has observed that;
“3…in the FIR lodged in respect of the incident in question the present appellants had been nominated and specific role has been attributed to them therein. The ocular account of incident has been furnished before the trial Court by three eye witnesses namely Ali Akbar complainant(PW-01), Ghulam Shabir(PW-02) and Bilawal(PW-03) who had made consistent statements and had pointed their accusing fingers towards the present appellants as the main perpetrators of the murder in issue. The said eye-witnesses had no reason to falsely implicate the appellants in a case of this nature and the medical evidence had provided sufficient support to the ocular account furnished by them”.
Another reliance is also placed upon case of Zahoor Ahmed Vs. the State(2017 SCMR-1662), wherein the Hon’ble Supreme Court of Pakistan has held that;-
“4. The ocular account in this case consists of Muhammad Khan complainant (PW-06) and Shahbaz (PW-07). They gave the specific reasons of their presence at the place of occurrence as, according to them, they alongwith the deceased were proceeding to harvest the sugarcane crop. Although they are related to the deceased but they have no previous enmity or ill-will against the appellant and they cannot be termed as interested witnesses in the absence of any previous enmity. They remained consistent on each and every material point. The minor discrepancies pointed out by the learned counsel are not helpful to the defense because with the passage of time such discrepancies are bound to occur. The occurrence took place in broad day light and both parties knew each other so there was no mistaken identity and in absence of any previous enmity there could be no substitution by letting off the real culprit specially when the appellant alone was responsible for the murder of the deceased. The evidence of two eye witnesses was consistent, truthful and confidence inspiring. The medical evidence fully supports the ocular account so far the injuries received by the deceased, time which lapse between the injury and death and between death and postmortem. Both the Courts below have rightly convicted the appellant under section 302(b) PPC.
18. Considering the facts and circumstances discussed above, I am of the humble view that the prosecution has successfully proved its case against the present appellants through ocular account furnished by complainant Gulab (PW-01) and eye-witnesses Sudheer Ahmed(PW-02) and Zulfiqar Ali (PW-03), which is corroborated by the evidence of medical officer Dr.Karamullah (PW-05). Learned counsel for the appellants has failed to point out any illegality or serious infirmity committed by the learned trial Court while passing the impugned judgment, which is based on appreciation of the evidence and same does not call for any interference by this Court. Thus, the conviction and sentence awarded to both the appellants by learned trial Court are hereby maintained and the instant appeal filed by the appellants merits no consideration, which is dismissed accordingly.
19. These are the reasons of short order dated 30.04.2018, announced by me.
J U D G E
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