IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Appeal No. S-101 of 2009.
Appellants: (1) Khadim s/o Ghulam Qadir Khoso
(2) Yaqoob s/o Ghulam Qadir Khoso
Through Mr.Muhammad Afzal Jagirani, Advocate.
State: Through Mr. Sharafuddin Kanhar, A.P.G.
Date of hearing: 04.05.2018.
Date of Judgment: 04.05.2018.
J U D G M E N T
AMJAD ALI SAHITO, J-. The instant appeal is directed against the impugned judgment dated 28.10.2009, passed by learned 1st Additional Sessions Judge, Dadu, in Sessions Case No.129/2006 St.Vs.Hakim Khoso and others, arising out of Crime No.47/2006, for offence punishable u/s.302,504,34 PPC registered with Police Station, K.N.Shah, whereby the above named appellants were tried and convicted for offence punishable u/s.302 (b), 34 PPC and sentenced to suffer rigorous imprisonment for life and to pay compensation of Rs.50,000/- each to legal heirs of deceased Kaloo Khan, and in case of default in payment of compensation, to suffer S.I for six months more. However, the benefit of Section 382-B Cr.PC was also extended to them.
2. The brief facts of the prosecution case as depicted in the FIR are that on 15.03.2006, complainant Noor Nabi son of Shafi Muhammad Khoso lodged FIR with P.S K.N.Shah, stating therein that he owned an agricultural land, which was being cultivated by him. On 14.03.2006, he went to look-after the harvesting wheat crop at his land, where his nephew(sister’s son) Kaloo Khan Khoso, aged about 18/19 years, came for grazing his goats. Accused Hakim, Khadim and Yaqoob, all sons of Ghulam Qadir Khoso also came there to graze their cattle. During course of grazing their cattle and goats, all of them scuffled to each other, who on intervention of complainant party were separated. Thereafter, his nephew Kaloo Khan left the said land and was grazing their goats near bank of Dang Wah. At about 03.00 p.m, the complainant party saw that accused namely Khadim, Yaqoob and Hakim Khoso, were causing danda blows to his nephew Kaloo Khan, whereupon the complainant and his cousins Abdul Khaliq Khoso and Lutuf Khoso rushed towards them while raising hakals but his nephew Kaloo Khan on receipt of danda blows fell down on the ground. The complainant party intervened and rescued Kaloo Khan. Thereafter, all the accused while abusing went away. The complainant party then saw Kaloo Khan having injuries on his head and different parts of his body and the blood was oozing and he was shifted to Taluka Hospital K.N.Shah after obtaining letter from P.P Ghozo, wherefrom he was referred to Larkana Hospital. During course of his treatment, he succumbed to injuries and died at about 02.00 a.m(night). His dead body was then taken back to K.N.Shah Hospital where leaving the above named witnesses over the dead body, the complainant came at police station and lodged the FIR against the accused to effect that the above named accused in furtherance of their common intention committed murder of his nephew(sister’s son) Kaloo Khan by causing him danda blows. During course of investigation, the above named accused/appellants were arrested by the police and the investigation officer after observance of legal formalities submitted the report u/s.173 Cr.PC before the competent Court of law.
3. After completing all the formalities, on 22.11.2006 the learned trial Court framed the charge against all the accused(Exh.02), to which they pleaded not guilty and claimed trial. During commencement of trial, co-accused Hakim was declared as juvenile and his case being covered under Juvenile Justice System Ordinance 2000, was bifurcated from the case of present appellants.
4. In order to establish accusation against the appellants, the prosecution then led its’ evidence and examined PW-01 Medical officer Dr.Abdul Jabbar Bughio at Exh.06, he produced letter for postmortem at Exh.06/A, and postmortem report at Exh.06/B. PW-02 ASI Bakhshal Khan at Exh.07. PW-03 complainant Noor Nabi at Exh.08, he produced roznamcha entry No.3 at Exh.08/A, and FIR of the present case at Exh.08/B. PW-04 Abdul Khaliq at Exh.09. PW-05 Shamsuddin at Exh.10, he produced mashirnama of inspection of injuries/dead body of deceased at Exh.10/A, attested photo stat copy of inquest report at Exh.10/B, mashirnama of place of incident at Exh.10/C, mashirnama of recovery of blood stained clothes of deceased at Exh.10/D, mashirnama of arrest of accused Khadim, Hakim and Yaqoob at Exh.10/E and mashirnama of recovery of Danda at Exh.10/F. PW-06 Tapedar Ghulam Mustafa at Exh.11, he produced sketch of vardat at Exh.11/A. PW-07 second I.O Adam Khan at Exh.12. PW-08 HC Zulfiqar Ali at Exh.13. PW-09 first I.O Ghulam Sarwar at Exh.14¸ he produced chemical report at Exh.14/A. Thereafter, the side of prosecution was closed vide statement at Ex.15.
5. The statements of present accused/appellants were recorded under Section 342 Cr.PC at Ex.16 and 17 respectively, wherein they denied the prosecution’s allegation leveled against them and lastly prayed for justice. However, none of them examined themselves on Oath in terms of Section 340(2) Cr.PC nor led any evidence in their defense.
6. The learned Trial Court, after hearing the learned counsel for the parties and appraisal of the evidence, convicted and sentence the present appellants through impugned judgment dated 28.10.2009, as stated above, which they have impugned before this Court by way of filing instant appeal.
7. Learned counsel for the appellants argued 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 due to enmity; that the allegations against the present appellants are general in nature and none has witnessed the incident; all the prosecution witnesses are interested witnesses and inimical towards the appellants; that the FIR was lodged with due deliberation and consultation. 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, the appellants are entitled for their acquittal.
8. While rebutting the above contentions, the learned A.P.G for the State argued that the appellants are named in the FIR, who alongwith co-accused in furtherance of their common intention committed murder of deceased Kaloo Khan by causing him danda blows; that no proof of any enmity was brought by the appellants which may justify their false implication in this case at the hands of the complainant party being interested witnesses; that although the ocular account is consistent with medical as well as circumstantial evidence. He further argued that the learned trial Court has rightly appreciated the evidence for recording the conviction and sentence against the appellants in accordance with law and thus lastly prayed for dismissal of the instant appeal.
9. I have heard learned counsel for the parties and perused the record.
10. 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 Noor Nabi (PW-03) and eye-witnesses Abdul Khaliq (PW-04), which is supported by the medical evidence adduced by medical officer Dr.Abdul Jabbar Bughio (PW-01), coupled with recovery of crime weapon. There can be no denial to legally established principle of law that it is always the direct evidence which is the 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. The reliance can safely be placed upon 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”.
11. The record shows that the complainant and accused/appellants party are related inter-se. The deceased is nephew (sister’s son) of the complainant, while all the accused are sons of his cousin. This unfortunate incident had taken place during broad day light at 1500 hours, therefore, the presence of eye-witnesses at the venue of occurrence at the relevant time is natural who otherwise categorically stuck with their claim from beginning that they alongwith PWs Abdul Khaliq and Lutuf Ali were standing at their agricultural land where deceased Kaloo Khan came to graze his goats, meanwhile all the accused also came there for grazing their cattle, where all of them scuffled with deceased Kaloo Khan but they on intervention were separated by the complainant party, whereupon deceased Kaloo Khan started grazing his goats at some distance near Dang Wah, and all the accused persons came duly armed with dandas/lathies at about 03.00 p.m and assaulted upon deceased Kaloo Khan and caused him injuries on his head and different parts of his body. All the accused on seeing complainant Noor Nabi and PWs Abdul Khaliq and Lutuf Ali coming near to the deceased, fled away. Deceased Kaloo Khan on receipt of injuries was shifted to Taluka Hospital K.N.Shah after obtaining letter from P.P Ghozo, and such entry in roznamcha was kept at P.P Ghozo at Exh.08/A. 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, which is substantiated from the production of roznamcha entry No.03(Exh.08/A) showing the time of their arrival with injured at P.P Ghozo at 1600 hours with regard to obtaining the letter for medical treatment of injured, which justified the presence of complainant party at the place of incident at the relevant time. 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. For this witnesses are to give the details of incident in a manner which is believable to a prudent mind. Reliance is placed on 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.
12. In the instant matter, both the 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. In addition to this, both the eye-witnesses have also explained the mode and manner of taking place the occurrence qua the culpability of 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/appellants is that to satisfactorily establish that witnesses, in fact, are not the witnesses of truth but “interested” one. 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. In the present case, the complainant party as well as the appellants are related inter-se and all the appellants are sons of complainant’s cousin and reside in one and same enclosure. In this context, 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. State 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-01) 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 the testimonies of complainant and his witness 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 in blood-relations then normally the possibility of substitution becomes rare. Thus, no material has been brought on record by the appellants to justify that the deep rooted enmity existed earlier between the parties, which could have been reason for false involvement of the appellants in this case. Reference may be made to the case of Zahoor Ahmed v. The State 2007 SCMR 1519, wherein it is observed as:-
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.
13. The direct evidence also finds corroboration from the medical evidence with regard to cause of death and time of the incident. It is established from the evidence of medical officer Dr.Abdul Jabbar (PW-01), who deposed that the dead body of deceased Kaloo Khan was received by him for conducting postmortem examination, which was identified by Noor Nabi(complainant) and PW Abdul Khaliq(eye-witness). On external examination, the following injuries were found on the dead body of deceased Kaloo Khan;
01. Lacerated wound 04 cm x 0.5 cm at left parieto occipital region of the head.
02.Lacerated wound 8 cm x 0.5 cm at the mid of fronto occipital region of the head.
03.Lacerated wound 3 cm x half cm at the right mid front parietal region of head.
04.Lacerated wound 3 cm x 0.5 cm at the right side of forehead.
05.Contused swelling 4 cm x 2 cm at right upper eye brow.
06.Contused swelling 4 cm x 0.5 cm at the internal side of left fore-arm.
On internal examination of dead body of deceased Kaloo Khan, he found that his head was found fracture of right frontal, right parietal and ethmoid, bone, Brain damage pale and congested with clots and cerebro. Spinal fluid. This witness deposed that deceased Kaloo Khan had received injuries No.1 to 6, which were caused by hard blunt substances(such a dandas/lathies). All these injuries were anti-mortem in nature and injury No.1 to 3 and 4 were sufficient to cause death of deceased Kaloo Khan, which suffice to say that the cause of death of deceased was unnatural and thus, this also corroborate the ocular testimony furnished by the complainant and eye-witness. The reliance is 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.
14. Reverting to the circumstantial account, the investigation officer during course of investigation secured the crime weapon viz. dandas/lathies on the lead of appellants Khadim and Yaqoob, the same were dispatched to the Chemical Examiner and found duly stained with human blood vide such report brought on record at Exh.14/A. Thus, this piece of evidence substantiates the ocular testimony of complainant Noor Nabi and eye-witness Abdul Khaliq.
15. Considering the above facts and circumstances, I have come to the conclusion that the prosecution has successfully established its case against the appellants through ocular account furnished by eye-witnesses namely complainant Noor Nabi (PW-03) and Abdul Khaliq (PW-04) which is corroborated by the medical evidence adduced by medical officer Dr.Abdul Jabbar (PW-01) coupled with recovery of crime weapon. Learned counsel for the appellants has failed to point out any material illegality or serious infirmity committed by learned trial Court while passing the impugned judgment, which in my humble view is based on appreciation of the evidence and the 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.
16. These are the detailed reasons for the short order dated 04.05.2018, announced by me.
J U D G E