IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Jail Appeal No.S-06 of 2013
Appellant : Ghulam Sarwar son of Ahmed Jagirani
Through Mr. Habibullah Ghouri, Advocate
Complainant : Hussain Bux Jagirani through
Mr.Syed Tahir Abbas Shah, Advocate,
State : Through Mr.Raja Imtiaz Ali Solangi, A.P.G
Date of hearing : 22.10.2018
Date of decision : 29.10.2018
J U D G M E N T
IRSHAD ALI SHAH, J-. The appellant by way of instant appeal has impugned judgment dated 12.12.2012, passed by learned 1st Additional Sessions Judge, Shikarpur, whereby the appellant for an offence punishable u/s 302 (b) PPC has been convicted and sentenced to undergo imprisonment for life and to pay fine of rupees One Lac to be paid to the legal heirs of deceased Muhammad Nawaz, and in case of his failure to make payment of fine, to undergo rigorous imprisonment for six months, with benefit of Section 382-B Cr.PC.
2. The facts in brief necessary for disposal of instant appeal are that the appellant with rest of the culprits, allegedly after having formed an unlawful assembly and in prosecution of their common object, being armed with deadly weapons, fired and killed Muhammad Nawaz, for that the present case was registered. On due investigation, the appellant was challaned by the police before the Court of law to face trial for the above said offence.
3. At trial, the appellant did not plead guilty to the charge and the prosecution to prove its’ case examined PW-01 medical officer Dr.Nand Lal at Exh.10, produced through him postmortem report and Danistnama on the dead body of the said deceased, PW-02 Complainant Hussain Bux at Exh.11, produced through him FIR of the present case, PW-03 Mashir Manthar at Exh.12, produced through him memo of examination of dead body of the said deceased, inquest report and memo of place of incident, PW-04 Tapedar Qaimuddin at Exh.14, produced through him sketch of Vardat, PW-05 SIO/SIP Zahid Hussain at Exh.15, PW-06 PC Bashir Ahmed at Exh.16, and in end produced report of chemical examiner by way of statement and thereafter closed the side.
4. The appellant during course of his examination u/s 342 Cr.PC denied the prosecutions’ allegation by pleading innocence. He did not examine anyone in his defense or himself on oath in disproof of the prosecution allegation.
5. On evaluation of evidence, the learned trial Court 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.
6. It is contended by learned counsel of the appellant that only the evidence on ocular premises which the prosecution was able to bring on record against the appellant was that of complainant Hussain Bux, it was not transpiring confidence yet it has been believed by the learned trial Court without lawful justification, ignoring the delay of one day in lodgment of the FIR and the injury to the said deceased which is attributed to the appellant even otherwise has not been proved to be fatal. By contending so, he sought for acquittal of the appellant.
7. The learned A.P.G and learned counsel for the complainant, by supporting the impugned judgment, have sought for dismissal of instant appeal by contending that the appellant has actively participated in the commission of incident by causing fire shot injury to the deceased.
8. I have considered the above arguments and perused the record.
9. The unnatural death of deceased Muhammad Nawaz is proved of evidence of medical officer Dr.Nand Lal. Now is to be examined the liability of the appellant towards the alleged incident.
10. It was stated by complainant Hussain Bux during course of his examination before the learned trial Court that on the date of incident, he, PWs Ali Hassan, Allah Jurio and deceased Muhammad Nawaz while were going to attend the Court of Civil Judge at Garhi Yasin, when reached adjacent to village “Darri”, there at about 07.00 A.M, there came accused Gulab with gun, Sarwar with gun, Asghar with pistol, Ahmed with gun, and fifth could not be identified by them. It was further stated by the complainant that accused Ahmed made fires in air and then instigated rest of the accused not to spare deceased Muhammad Nawaz because he has disputed with them over matrimonial affairs. On instigation of accused Ahmed, accused Gulab, Sarwar and Asghar fired at deceased Muhammad Nawaz, those fires hit at mouth, chest and arm of deceased Muhammad Nawaz. It is further stated by the complainant that he and his witnesses raised cries and then accused went away. He and his witnesses then took the dead body of the said deceased to Taluka Hospital Madeji, it was then buried after postmortem examination and then on the next date, he lodged report of the incident with P.S “Gaheja”. The complainant was subjected to cross examination but he stood by his version on all material points. At this juncture, it may well be added that it is by now a well settled principle of law that conviction, even in a murder case, can well be based on a single testimony of a single witness, if the same passes the test of being confidence inspiring, natural and direct one. Principle, so enunciated, is in reaffirmation of another legal principle that it is the quality and not the quantity, which matters in search of proof or disproof. Reference in this context may well be placed upon the case of Farooq Khan v. The State (2008 SCMR-917) wherein it is held that;
“9. Moreover, conviction in any murder case can be based on the testimony of a single witness, if the Court is satisfied that the witness is reliable. In other words, the emphasis” is on the quality of evidence, and not on its quantity. In this behalf reliance can be placed on the case of Allah Bakhsh v. Shammi PLD 1980 SC 225”.
11. It is made clear here that above principle, however, would not prejudice the consequences of Article 129(g) of the Qanun-e-Shahadat Order, 1984, if the prosecution deliberately with-holds evidence of any material witness. Keeping both principles in view, the perusal of the record would show that though PWs Ali Hassan and Allah Jurio (eye-witnesses), have not been examined by the prosecution but simply for the reason that they died of natural death. As per learned trial Judge, both of the said witnesses attended the learned trial Court regularly but it was the appellant, who deliberately avoided proceeding with his case. If the appellant has not adopted such tacts then both of the said witnesses would have been examined by the prosecution long before their death. In that situation, the appellant could not be permitted to take benefit of non examination of the said witnesses by taking a plea that there is no evidence against him excepting that of the complainant. Non-examination of said witnesses could not be taken as with-holding of evidence. Further, it is also not case of the appellant that initial stand of these witnesses (their statements, recorded during course of investigation) do not implicate him in commission of the incident. It is true that there is delay of one day in lodgment of the FIR but such delay alone is not sufficient to be taken as fatal for the prosecution. The delay, if is not explained plausibly, may give rise to a circumstance towards chances of deliberation, however, it shall be the accused to establish that such delay was deliberate and with an intention to falsely rope the innocent. Reference in that context may well be placed upon case of Muhammad Zubair v. State (2007 SCMR-437) wherein it is observed that;
“4. Generally delay in lodging F.I.R cannot in all cases lead to the inference that the case set up in the F.I.R. is necessarily true or false, however, it is relevant circumstance to be considered”.
12. The delay of one day in the instant case was explained by the complainant plausibly in the FIR itself. Even otherwise, no suggestion was made to the complainant during course of his cross examination that he has lodged the FIR of the incident with police after due deliberation, which impliedly reflects that the delay in lodgment of the FIR being natural was not disputed by the appellant himself at trial.
13. The evidence of the complainant on ocular premises is found to be reliable, which could not be ignored only to benefit the appellant. The availability of the complainant at the place of incident even otherwise is indicated in sketch of vardat, which was prepared by Tapedar Qaimuddin, who at the time of his examination before learned trial Court was not cross examined even by the appellant through his learned counsel. Further, it was also never attempted by the appellant to establish that on relevant date and time the complainant, witnesses and deceased were not going to attend the hearing of their case at Civil Court, Garhi Yasin. In absence of such challenge, the presence of the complainant at such venue and time brings him out of the meaning of chance-witness and makes him a natural witness’which puts strength in his (complainant) evidence.
14. As per medical officer Dr.Nand Lal, the injury No.1 on buckle cavity was found sufficient to cause death of deceased Muhammad Nawaz. In that context, it was contended by learned counsel for the appellant that the injury sustained by the deceased on his chest was not fatal. The appellant by causing fire shot injury to the deceased on his chest has actively participated in commission of the incident and the appellant as such has to share the common intention. The circumstances of one, having armed with weapons, going towards a certain place in company of other person(s), having motive to kill would always prima facie show common object of such person unless he himself establishes otherwise. In the instant case no such attempt was made by the appellant, therefore, acts of appellant were rightly found to be with common object of such assembly.
15. In case of Ramachandran and others Vs. State of Kerala (2012 SCMR-1156), it has been observed that;
“12. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under second part of section 149 IPC if it can be held that the offence was such as the members, knew was likely to be committed. The expression “know”’ does not mean a mere possibility, such as might or might not happen. For instance, it is a matter of common knowledge that if a body of persons go armed to take forcibly possession of the land, it would be right to say that someone is likely to be killed and all the members of the unlawful assembly must be aware of that likelihood and would be guilty under the second part of section 149, IPC”.
15. The crucial question for determination in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons which were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly. (vide Masalti v.State of Uttar Pardesh, AIR 1965 SC-202)”.
16. PW/Mashir Manthar Ali and SIO/SIP Zahid Hussain have fully supported the case of prosecution. In that situation, the appellant could not be extended benefit of doubt under the pretext that the report of chemical examiner has not been produced before learned trial Court in accordance with law.
17. The conclusion which could be drawn of the above discussion would be that the appellant has acted in furtherance of their common intention thereby committed Qatl-e-Amd of deceased Muhammad Nawaz by causing him fire shot injuries, he as such has rightly been convicted and sentenced by learned trial Court by way of impugned judgment, which is not calling for any interference by this Court by way of instant criminal appeal, it is dismissed accordingly.
JUDGE