IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Criminal Jail Appeal No.17 of 2013

 

 

Appellant                      :         Farooq son of Daud Mahar,

Through Mr.Asif Ali Abdul Razzak Soomro, Advocate          

 

Complainant                                    :           Bahawal Shah through

Mr.Habibullah Ghouri, Advocate                       

 

State                               :         Through Mr.Raja Imtiaz Ali Solangi, A.P.G

 

Date of hearing            :         10.08.2018          

Date of decision           :         27.08.2018                             

 

J U D G M E N T

 

IRSHAD ALI SHAH, J.- The appellant by way of instant appeal has impugned judgment dated 18.01.2013, passed by learned 1st Additional Sessions Judge, Shikarpur, whereby he was convicted and sentenced as under;

“I feel that an offence is brought home to accused Farooq s/o Daud Mahar and I convict him u/s.302(b) PPC and sentence him to imprisonment for life. An accused is also fined to the extent of Rs.100,000/-(One Lac) and in default of payment of fine he would undergo 06 months R.I more. Said amount of fine if recovered be paid to legal heirs of deceased Imdad Ali Shah as provided U/S.544-A Cr.PC.

 

2.                The narration of the incident is well disclosed in the FIR of the present case, which was lodged by complainant Bhawal Shah with Police Station, Chakk, District Shikarpur, which reads as under;

“Complaint is that I obtained on lease 03 Jirebs of the land in Deh Bhirkan for ten years from Yar Muhammad Mahar. I yielded two crops over the said land. Yar Muhammad before expiry of lease period leased out the said land for ten years to Umar Mahar and Daud Mahar and then prevented me from cultivating crop therein. On that we became disputed since 2/3 days. I approached Yar Muhammad, Umar and Daud with request that they may not do injustice with me but they paid no heed to my request. Today, at early in the morning, me, my paternal nephews Imdad Ali Shah son of Sajjan Shah, 2). Gambal Shah s/o Nawab Shah, 3). Mohabat Shah, all sons of Nawab Shah and 4). Babo Shah s/o Koral Shah Syed r/o Syed Goath(village) were getting ploughed the above said land, there at about 0930 hours, came accused Yar Muhammad s/o Hussain Bux Mahar r/o Abdu armed with 222 rifle, 2). Farooq s/o Daud r/o village Dall armed with DBBL gun, 3). Umar s/o Juwan Mahar r/o village Dall with DBBL gun, 4). Daud s/o Bahadur Mahar r/o village Dall with gun, 5). Shabir s/o Bahadur Mahar r/o village Dall with hatchet, 6). Fareed s/o Daud Mahar r/o village Dall with lathi. Accused Yar Muhammad then said that Bahawal Shah is not surrendering the possession of the land. By stating so he instigated rest of the accused to kill Imdad Ali Shah. On his saying so, accused Farooq and Umar with their DBBL Guns fired at Imdad Ali Shah, who by sustaining those fire shots, fell down on the ground by raising cries. We raised cries of “murder murder” on that the said accused by raising slogans and making aerial firing ran away. Imdad Ali Shah was found to be in serious condition, he was found sustaining fire shot injuries on his both legs and thighs, he was bleeding profusely. We arranged for the vehicle and shifted Imdad Ali Shah to Government Hospital at Chak, there he succumbed the said injuries. Thereafter, I proceeded here at Police Station for lodging the FIR that accused Farooq Mahar, Umar Mahar by making fires with their DBBL guns have committed murder of Imdad Ali Shah. I am complainant and investigation be conducted”.

 

 

3.                On investigation, the appellant and co-accused Yar Muhammad were arrested and challaned by the police before the Court of law to face trial for the above said offence.

4.                At trial, the appellant did not plead guilty and prosecution to prove the charge against them, examined PW-01 Tapedar Zulfiqar Ali, produced through him sketch of vardat,  PW-02 SIO/SIP Farzand Ali, produced through him memo of arrest of accused Yar Muhammad, memo of recovery of rifle, bullets, magazine and license book from accused Yar Muhammad, “roznamcha” entry No.17, dated 17.01.2005, PW-03 complainant Bahawal Shah, produced through him FIR of the present case, PW-04 Gambal Shah alias Manthar Shah, PW-05 Muhbat Shah, PW-06 Mashir Riaz Ali Shah, produced through him memo of examination of dead body of deceased Imdad Ali Shah, inquest report, “Lash Chakas” Form, memo of place of incident and recovery of empty cartridges and blood stained earth, memo of house search of accused Yar Muhammad and memo of house search of the appellant, PW-07 medical officer Dr.Jameel Ahmed, produced through him postmortem report on dead body of deceased Imdad Ali Shah, PW-08 Mashir Ahsan Ali Shah, PW-09 Inspector Sanaullah he was examined to identify the signatures of SIO/Inspector Muhammad Aslam Niazi who after his retirement was found untraceable, through him was produced report of the chemical examiner and then prosecution closed its side. 

5.                The appellant and co-accused Yar Muhammad during course of their examination u/s.342 Cr.PC denied the prosecution’s allegation by pleading innocence. They did not examine anyone in their defense or themselves on oath in disproof of the prosecution allegation.

6.                It was specifically stated by co-accused Yar Muhammad that he has been involved in this case falsely by the complainant as he refused to lease out his land to him which was leaded out by him to Babu Shah. By stating so, he produced the photo stat copy of lease agreement allegedly executed by him with Babu Shah.             

7.                On evaluation of evidence, so produced by the prosecution, the learned trial Court acquitted co-accused Yar Muhammad while convicted and sentenced the appellant, as detailed above, by way of judgment, which the appellant has impugned before this Court by way of instant appeal, as stated above.

8.                It is contended by learned counsel of the appellant that the appellant being innocent has been involved in this case falsely by the complainant party on account of their dispute with him on lease of the land, the complainant and his witnesses being related were interested, their availability at the place of incident is not taking mention in sketch of vardat which was prepared by Tapedar Zulfiqar Ali, as such the complainant and his witnesses ought not to have been believed by learned trial Court while recording conviction and sentence against the appellant. Co-accused Yar Muhammad according to him, on same set of evidence has already been acquitted by learned trial Court, SIO/Inspector Muhammad Aslam Niazi has not been examined by the prosecution which has prejudiced the appellant in his defense. The deceased even otherwise according to him has died of profuse bleeding on account of improper treatment and there was no strong motive with the appellant or anyone else to have committed the alleged incident. By contending so, he sought for acquittal of the appellant or alternatively release of the appellant by modifying his conviction and sentence from clause “b” to “c” of Section 302 PPC to one which he has already undergone. In support of his contention, he relied upon cases of Piran Ditta vs. the State (1993 SCMR-1934), 2). Nisar Depar vs. State (2017 P.Cr.LJ-1099), 3). Zeeshan @ Shani vs. State (PLD 2017 Supreme Court-165), 4). Muhammad Saleem vs. the State (2007 SCMR-1896), and 5). Ali Muhammad vs. Ali Muhammad another (PLD 1996 Supreme Court-274).

9.                In rebuttal to above, it is contended by learned A.P.G for the State and learned counsel for the complainant that the appellant is neither innocent nor was involved in this case falsely by the complainant party, the complainant and his witnesses were natural witness to the incident as such they were properly believed by the learned trial Court while recording conviction and sentence against the appellant. The case of the appellant is distinguishable to the case of co-accused Yar Muhammad (since acquitted). The appellant was having a strong motive to kill the deceased to satisfy his dispute with him over lease of the land, as such according to them he is not liable to any concession by modifying his conviction from class “b” to “c” of Section 302 PPC. By contending so, they sought for dismissal of the instant appeal. In support of their contention, they relied upon cases of Muhammad Asif vs.Muhammad Akhtar & others(2016 SCMR-2035), 2). Muhammad Mansha vs.the State (2016 SCMR-958), 3). Muhammad Riaz and another vs. the State (2017 SCMR-1871), 4). Rehmat Khan and another vs. the State and others (2017 SCMR-2034), and 5). Nazar Hussain and another vs.the State                     (PLD 2010 Supreme Court-1021).

10.              I have considered the above arguments and perused the record.

11.              Prima facie, the appellant has not only attacked the legality of the conviction and sentence recorded against the appellant but while lasting his arguments has also prayed for modifying the conviction and sentence of the appellant from clause “b” to “c” of Section 302 PPC. Legally, it would be quite safe in saying for making attack on conviction and sentence, the conviction and sentence must be shown to be not in conformity with available material and established principle of appreciation of evidence, while for a relief of modifying conviction and sentence, the appellant has to part with question of guilt and shall have to question legality of applied section of conviction and sentence only. Both, being entirely different in nature and character are requiring to be dealt with separately.

12.               It would be appropriate to take first plea first. The un-natural death of deceased Imdad Ali Shah is proved by almost un-rebutted evidence, which was furnished by medical officer Dr.Jameel Ahmed. Even otherwise, there is no dispute by the appellant with regard to the death of the said deceased being un-natural. It is established principle of law that medical evidence neither pin-points the accused nor establishes the identity of the accused but is supportive piece of evidence only to the extent of specification of seat of injuries, the weapon used, duration and the cause of death etc. Thus, a mere un-natural death would never be sufficient for holding one guilty of the offence but could only establish happening of offence alone. In other words, guilt of one (sent up accused) would always be determined mainly on the basis of direct piece of evidence while rest of evidence, including medical evidence would be for examining veracity of such ocular account by putting the same with corroborative or supportive piece of evidence, so brought on record by the prosecution. 

13.               Once, the un-natural death of the deceased is established, then only question remains to be answered would be the guilt or innocence of the sent-up (complained) accused. Since, in instant case the un-natural death of the deceased is undisputed, hence is to be examined the liability of the appellant towards the incident.

14.               It was inter-alia stated by complainant Bahawal Shah and PWs Gambal Shah alias Manthar Shah and Muhbat Shah that they were having land on lease for 10 years, such lease was cancelled by accused Yar Muhammad and then it was leased out by him to the appellant and co-accused Daud Mahar. They prevented them from cultivating the said land. On 22.04.2012, they and the deceased were on the land under lease, there at about 09.30 A.M, there came accused Yar Muhammad armed with 222 rifle, the appellant armed with DBBL Gun, accused Umer armed with DBBL Gun, accused Shabir armed with hatchet and accused Fareed armed with lathi. There at the instigation of accused Yar Muhammad, accused Umer and the appellant fired at Imdad Shah, those fires hit him and he by sustaining those fires fell down on the ground. They raised cries of “murder murder” and then all the accused ran away by making aerial firing.  The deceased in injured condition according to them was taken to Chakk Hospital. There he succumbed to the said injuries. The incident according to them was reported to the police. They have been subjected to very lengthy cross examination but the veracity of their evidence could not be shattered on all material points with regard to death of deceased Imdad Ali Shah. The question of mistaken identity was never involved in the instant matter and the evidence of complainant and his witnesses could not be disbelieved only for the reason that they are related inter-se unless it is shown that these witnesses had a motive to falsely rope the appellant by attributing a specific role to him. Even otherwise, it is observed that the principle of falsus in unofalsus in omnibus is no more applicable to the present case because of certain aspects but for assuring safe administration of justice. The Court(s) are always required to follow the principle of appraisal of evidence by sifting of grain out of chaff. For example, if an ocular testimony of a witness is to be disbelieved against a particular set of accused and is to be believed against another set of accused facing the same trial, then the Court must search for independent corroboration on material particulars. Thus, mere acquittal of one accused would never be sufficient to earn acquittal of another accused (convicted person), unless it is established that case of convicted accused squarely is similar to that of acquitted accused and there was/is no independent corroboration/supportive material for such conclusion. Reference in that respect may be placed upon case of Iftikhar Hussain v. State (2004 SCMR-1185), wherein it is observed by the Hon’ble Court that:-

“17. It is true that principle of falsus in unofalsus in omnibus is no more applicable as on following this principle, the evidence of a witness is to be accepted or discarded as a whole for the purpose of convicting or acquitting an accused person, therefore, keeping in view prevailing circumstances, the Courts for safe administration of justice follow the principle of appraisal of evidence i.e sifting of grain out of chaff i.e if an ocular testimony of a witness is to be disbelieved against a particular set of accused and is to be believed against another set of  the accused facing the same trial, then the Court must search for independent corroboration on material particulars as has been held in number of cases decided by the superior Courts. Reference may be made readily to the case of Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758, relevant para therefrom is reproduced here-in-below;

“thus the proposition of law in criminal administration of justice namely whether a common set of ocular account can be used for recording acquittal and conviction against the accused persons who were charged for the same commission of offence is an over-worked proposition. Originally the opinion of the Court was that if a witness is not coming out with a whole truth his evidence is liable to be discarded as a whole meaning thereby that his evidence cannot be used either for convicting accused or acquitting some of them facing trial in the same case. This proposition is enshrined in the maxim falsus in unoflasus in omnibus but subsequently this view was changed and it was held that principle enshrined in this maxim would not be applicable and testimony of a witness will be acceptable against one set of accused though same has been rejected against another set of accused facing same trial. However, for safe administration of justice a condition has been imposed namely that the evidence which is going to be believed to be true must get independent corroboration on material particulars meaning thereby that to find out credible evidence principle of appreciation of evidence i.e sifting chaff out of grain was introduced as it has been held in the cases of Syed Ali Bepari v. Nibaran Mollah and others (PLD 1962 SC-502)…..

15.              In case of Muhammad Raheel @ Shafique v. State (PLD 2015 SC-145), it has been held by Hon’ble Court that:-

“5. thus, their acquittal may not by itself be sufficient to cast a cloud of doubt upon the veracity of the prosecution’s case against the appellant who was attributed the fatal injuries to both the deceased. Apart from that the principle of falsus in unofalsus in omnibus is not applicable in this country on account of various judgments rendered by this Court in the past and for this reason too acquittal of the five co-accused of the appellant has not been found by us to be having any bearing upon the case against the appellant”.

 

16.              Admittedly, the deceased was in blood-relation of the complainant and normally a blood-relation may widen the net but would always attribute specific role to culprit and normally would never prefer to let the thick blood to go in vain. In the instant case , it has been a matter of record that witnesses of ocular account from very beginning though named number of persons in FIR and 161 Cr.PC statements, including acquitted accused, but specific role of committing death of the deceased by causing him fire-shot injuries was attributed by them to the appellant and absconding accused Umer. No doubt, co-accused Yar Muhammad was acquitted by learned trial Court but there could be made no denial to the fact that his case was distinguishable to that of the appellant. The role attributed to him in commission of the incident was only to the extent of instigation making his involvement in the present case within the ambit of Section 149 PPC to be doubtful. The allegation against the appellant does have independent corroboration in shape of medical evidence; place of incident; manner of incident as well weapon used by him. Further, there came nothing on record which may suggest that these witnesses had any reason/motive to falsely name the appellant for an act, resulting into death of the deceased (a blood-relation of the complainant party), therefore the learned trial Court committed no illegality while following the principle of appraisal of evidence by sifting of grain out of chaff. Reliance in that respect may be placed upon case of Ali Bux v. State (2018 SCMR 354), wherein the Hon’ble Court has observed that;

    “3. The occurrence in this case had taken place in broad daylight and at a place where at the same could have been seen by many persons available around the place of occurrence. An information about the said occurrence had been provided to the police on telephone within fifteen minutes of the occurrence. In the FIR lodged in respect of the incident in question the present appellants had been nominated and specific roles had been attributed to them therein. The ocular account of the incident had 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”.

 

17.               It is true that the availability of the complainant and his witnesses is not taking mention in sketch of vardat but this appears to be an omission on the part of Tapedar Zulifqar Ali, for such omission, the complainant party could not be burdened. There is no denial to the fact that happening of the incident at particular place was/is not disputed, rather it finds corroboration from such document too. The sketch of vardat was/is never claimed to be prepared at time of incident but was/is always prepared at later stage so as to show point(s) and placement of witnesses; accused and deceased as per the already recorded version of the complainant in his FIR. These point(s) are meant to examine the claim of witnesses as to whether they were ever in a position to see/witness the incident or otherwise as per claimed viewing points. It however would never be determinative to decide the presence of the complainant and his witnesses at the place of incident or otherwise.

18.               Much of the investigation of the present case was conducted by SIO/SIP Farzand Ali. In that situation, non examination of SIO/Inspector Muhammad Aslam Niazi could hardly affect the case of prosecution. The signatures of SIO/Inspector Muhammad Aslam Niazi were fully identified by Inspector Sanaullah on memo of examination of dead body of deceased Imdad Ali Shah and memo of place of incident, which were produced by the prosecution during course of investigation through PW/Mashir Riaz Ali Shah. In that situation, it would be hard to make conclusion that non-examination of SIO/Inspector Muhammad Aslam Niazi has prejudiced the appellant in his defense.

19.               In view of above discussion, it could be concluded safely that the appellant has failed to establish any prima facie mis-reading or non-reading of the available evidence/material or failure on part of the learned trial Court in following the settled principle of law of appreciation of evidence. Thus, the learned trial Court has rightly found the appellant to be guilty of the offence, for which he was charged and tried.

20.               With regard to the plea of modification of conviction and sentence awarded to the appellant from clause “b” to “c” of Section 302 PPC. It is stated that the deceased has died of profuse bleeding but there could be made no denial to the fact that the profuse bleeding was made by the deceased from his injuries which he sustained at the hands of the appellant and absconding accused Umer. In that situation, it would be wrong to make conclusion that the deceased has died of improper treatment. In these circumstances, it would be hard to order acquittal of the appellant and/or his release by modifying his conviction and sentence from clause “b” to “c” of Section 302 PPC. Indeed, the appellant has already been dealt with leniently by learned trial Court by awarding him lesser punishment.

21.              The case law which is relied upon by learned counsel for the appellant is on distinguishable facts and circumstances. In case of Piran Ditta (supra), the imprisonment for life awarded to accused was reduced to imprisonment of ten years by modifying the conviction and sentence with fine mainly for the reason that there was no intention with the accused to commit death of the deceased. In the instant case, the appellant was having intention to commit death of the deceased to satisfy his dispute with the complainant party over the lease of land. In case of Nisar Depar (supra), the conviction and sentence of the accused was modified from clause “b” to “c” of Section 302 PPC mainly for the reason that the prosecution failed to explain how the deceased sustained injury near to his buttock while sitting on a chair and offence was not found to have been pre-mediated. In the instant case, the appellant being armed with deadly weapon went over to the complainant party at the land on lease with them and then committed death of the deceased by causing him fire shot injuries together with absconding accused Umer only to satisfy his dispute with the complainant party over the lease of land. It was pre-mediated incident. In case of Zeeshan alias Shani (supra), the conviction and sentence of the accused was modified from class “b” to “c” of Section 302 PPC mainly for the reason that the incident took place without pre-mediation and deceased died of single blow of stick. In the instant case, the appellant was having a reason to commit death of the deceased to compel the complainant party to vacate the land with them on lease and the deceased was fired at not only by the appellant but by absconding accused Umer too with their respective weapons. In case of Muhammad Saleem (supra), the conviction and sentence of the accused was modified from clause “b” to “c” of Section 302 PPC mainly for the reason that there was no intention with him to commit death of the deceased and deceased died with blow of ordinary wooden “danda”. In the instant case, the appellant went over to the complainant party being armed with deadly weapon, committed death of deceased by causing him fire shot injuries together with absconding accused Umer to satisfy his dispute with the complainant party over the lease of land, it was not a case of “danda” blow. In case of Ali Muhammad (supra), the conviction and sentence of the accused was modified from clause “b” to “c” of Section 302 PPC mainly for the reason that the incident took place under grave and sudden provocation when the accused found the deceased to be engaged in sex with his wife. In the instant matter, no issue of sudden grave and provocation relating to sex is involved, which may justify modifying the conviction and sentence of the appellant from clause “b” to “c” of Section 302 PPC. It was pre-planned and pre-mediated incident.  

22.              In case of Muhammad Mansha (supra), which was relied by learned A.P.G for the State and learned counsel for the complainant, it was held by the Hon’ble Court that;

“8.The case in hand is one in which the appellant was named in the promptly lodged FIR with a specific role, which role is established on record. The occurrence was of a day time and the appellant was known to the PWs, who have identified him to be the person who has committed cold-blooded murder of Haji Liaquat Ali, deceased, and there seems to be no reason as to why the appellant should not undergo the maximum punishment provided for the offence”. 

                  

23.              In view of the facts and reasons discussed above, it is concluded that the conviction and sentence which is awarded to the appellant by learned trial Court is not calling for any interference by this Court by way of instant appeal. It is accordingly dismissed.

 

                                                                                                JUDGE

 

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