IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Jail Appeal No.S-74 of 2012
Appellant : Abdul Razzaque s/o Abdul Raheem Buriro,
Through Mr.Habibullah Ghouri, Advocate
Complainant : Jamaluddin son of Nasrullah Buriro
Through Mr.Irshad Ali Chandio, Advocate
State : Through Mr.Muhammad Noonari, D.P.G
Date of hearing : 13.08.2020
Date of decision : 21.08.2020
J U D G M E N T
IRSHAD ALI SHAH, J.- The appellant by way of instant appeal has impugned judgment dated 05.07.2012, rendered by learned 1st Additional Sessions Judge, Jacobabad, whereby the appellant has been convicted and sentenced as under;
“I convict him under section 265-H(2) Cr.PC and sentence him under section 302(b) PPC to imprisonment for life as a Tazir. The accused is also fined to the extent of Rs.4,00,000/- (Rupees four lacs) only, or in default of payment of fine he would undergo more R.I for 02 years. The fine if recovered be paid to the heirs of deceased as compensation. Benefit u/s.382-B Cr.PC is extended to accused.”
2. Facts in brief necessary for disposal of instant appeal are that the motorcycle of complainant party was stolen away, they were suspecting the appellant for such theft, he on having become annoyed on that, called Ghulam Murtaza alias Saqib and after covering few paces, fired and killed him and then went away by making aerial firing to create harassment, for that he was booked and reported upon.
3. At trial, the appellant did not plead guilty to the charge and the prosecution to prove it, examined PW-01 Medical officer Dr.Liaquat Ali, he produced postmortem report on dead body of the deceased, PW-02 Corpse Bearer PC Zakir Hussain, PW-03 HC Noor Hassan, PW-04 ASI Liaquat Ali, he produced FIR of the present case, PW-05 complainant Jamaluddin, PW-06 Nisar Ahmed, PW-07 Israr Ahmed, PW-08 Tapedar Ghulam Yasin, he produced sketch of vardat, PW-09 SIO/SIO Allah Dino, he produced danistnama, lash chakas form and memo of place of incident and examination of dead body of the deceased, PW-10 Mashir Gul Hassan, he produced memo of arrest of appellant and recovery of unlicensed pistol from him, PW-11 ASI Zahoor Ahmed, he produced roznamcha entries and FIR relating to recovery of unlicensed pistol from the appellant and then prosecution close its side.
4. The appellant in his statement recorded u/s. 342 Cr.PC denied the prosecution’s allegation by pleading innocence by stating that the complainant and his witnesses are interested; the pistol has been foisted upon him and he has been involved in this case falsely by the complainant party. His specific plea in his defence was to the following effect;
“I am innocent. Due to alleged theft of motorcycle I am involved in false case. Moreover, Imdad a nephew of complainant had kidnapped a girl namely Mst.Mumtaz belonging to Nabi Shah and others and deceased was supporting to Imdad and Nabi Shah and others annoyed. Due to kidnapping of Mst.Mumtaz deceased was killed by Syed Nabi Shah. I was arrested from my house and nothing was secured from me. I pray for justice.”
5. However, the appellant neither examined himself on oath nor anyone in his defense to prove his innocence.
6. On evaluation of evidence, so produced by the prosecution, the learned trial Court convicted and sentenced the appellant, by way of impugned judgment.
7. It is contended by learned counsel of the appellant that the appellant being innocent has been involved in this case falsely by the complainant in order to satisfy his grudge with him over theft of his motorcycle; the complainant and his witnesses are not natural witnesses to the incident, they were having reason to involve the appellant in this case falsely being related inter-se; the pistol has been foisted upon the appellant; the charge of the case is defective one; the sketch of vardat does not take mention of availability of the complainant and his witnesses at the place of incident; as per medical officer, the deceased was fired at from distance of 2/3 paces and as per complainant the deceased was fired at from distance of 8/10 paces. By stating so, an impression was given that there is conflict between medical and ocular evidence; co-accused Nizam now on separate trial has been acquitted by learned trial Court and learned trial Court has convicted and sentenced the appellant on the basis of improper assessment of the evidence. By contending so, he sought for acquittal of the appellant. In support of his contentions, he relied upon cases of Muhammad Arif vs. The State (2019 SCMR-631), 2). Muhammad Mansha Vs. The State (2018 SCMR-772), 3). Ishtiaq Masih Vs. The State (2010 SCMR-1039), 4). Muhammad Irshad and another Vs. The State (1999 SCMR-1030), 5). Assadullah and another Vs. The State and another (1999 SCMR-1034) and 6). Amin Ali and another Vs. The State (2011 SCMR-323).
8. It is contended by learned D.P.G for the State and learned counsel for the complainant that the appellant is neither innocent nor has been involved in this case falsely by the complainant party; the complainant and his witnesses were natural witness to the incident and they were having no reason to depose falsely against the appellant as he too is their close relative; for being in possession of unlicensed weapon, the appellant has already been convicted by the Court having jurisdiction and against such conviction, the appellant has preferred no appeal; there is no conflict between medical and ocular evidence; the charge against the appellant is not defective one and acquittal of co-accused Nizam is having no relevancy with case of the appellant, as his role in commission of the incident was only to the extent of abetment and the appellant has been convicted and sentenced by learned trial Court on the basis of proper appraisal of evidence. By contending so, they sought for dismissal of the instant appeal. In support of their contentions, they relied upon cases of Muhammad Waris Vs. The State (2008 SCMR-784), 2). The State through Muhammad Afzal and others Vs. Waheed Iqbal and others (2005 PCr.LJ-1384) and 3). Muhammad Rafique alias Neela and another Vs. The State and others (2020 SCMR-664).
9. I have considered the above arguments and perused the record.
10. It has inter-alia been stated by complainant Jamaluddin in his evidence that the appellant was annoyed on allegation of theft of their motorcycle. On 04.09.2010, at about 01.30 p.m, the appellant came at his house, called his son Ghulam Murtaza alias Saqib, took him and covering few paces, fired and killed him and then went away by making fires in air to create harassment and he leaving PWs Nisar Ahmed and Israr Ahmed at the place of incident, went at Police Station, Thull and lodged report of the incident. The complainant is supported in his version on all material points by PWs Nisar Ahmed and Israr Ahmed and they could not be disbelieved only for the reason that they are related inter-se and/or on the basis of irrelevant and immaterial inconsistencies in their evidence, when they too have been found to be closely related to the appellant and for the reason that co-accused Nizam (who apparently was having different role) has now been acquitted by learned trial Court.
11. 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.”
12. On arrest, from the appellant as per SIO/SIP Allah Dino has been secured the pistol which he allegedly used in commission of the incident and the same has been found to be similar with one of the empty secured from the place of incident, such recovery of pistol from the appellant could not be disbelieved under any pretext. There is no conflict between the ocular and medical evidence, as is pointed above, the opinion of the medical officer was based on probabilities and it was not definite. There was no defect in the charge and the same prima facie involves the appellant in commission of the incident. If for the sake of arguments, it is believed that there was defect in the charge; even then it is not prejudicing the right of the appellant and the same is protected under section 535 Cr.PC. The acquittal of co-accused Nizam at trial, separate to the appellant is of no help to the case of appellant, as no active role in commission of the incident was attributed to him.
13. No doubt, the sketch of vardat does not take mention of availability of the complainant and his witnesses but this appears to be result of an omission on the part of Tapedar Ghulam Yasin, and such omission is not enough to make conclusion that the complainant and his witnesses are unnatural witnesses to the incident. There is no denial to the fact that happening of the incident at particular place is not disputed, rather it finds corroboration from such document too. The sketch of vardat is never claimed to have been prepared at time of incident. It is always prepared at later stage and would never be determinative to decide the presence of the complainant and his witnesses at the place of incident or otherwise.
14. In case of Ali Bux and others vs.The State (2018 SCMR-354), wherein it has been held by the Hon’ble Apex Court 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-1) Ghulam Shabir, (PW-2) and Bilawal (PW-3) 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.”
15. The appellant has failed to establish any prima facie mis-reading or non-reading of evidence on record 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 has been charged and tried. Indeed, the appellant has been dealt with leniently by awarding lesser punishment by learned trial Court.
16. In case of Muhammad Mansha Vs. The State (2016 SCMR-958), it has been held by the Honourable Apex Court that;
“8.The case in hand is the 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.”
17. The case law which is relied upon by learned counsel for the appellant is on distinguishable facts and circumstances. In case of Muhammad Arif (supra), the main reason for acquittal of the accused was that co-accused who were attributed one of the fire arm injury to the injured was already acquitted by learned trial Court. In the instant case, the injuries to the deceased are attributed to the appellant alone. In case of Muhammad Mansha (supra), the accused was acquitted mainly for the reason that the witnesses had made dishonest improvements. In the instant case, the witnesses have been consistent on all material points. What to talk of dishonest of improvement. In case of Ishtiaq Masih (supra), the main reason for acquittal of the accused was that the presence of eye witnesses who were found to be resident of different village away to be at distance of 20/30 kilometers from the place of incident, was found to be doubtful. In the instant case, the witnesses are found to be resident of same village. In case of Muhammad Irshad and another (supra), the main reason for acquittal of the accused was that the ocular evidence was contradictory and it was found to be in conflict with medical evidence. In the instant case, no conflict in medical evidence is found and evidence which is furnished by the witnesses is appearing to be natural and consistent on all material points. In case of Assadullah and another (supra), the main reason for acquittal of the accused was that the eye witnesses were not found to have seen the accused firing at the deceased. In the instant matter, the witnesses have seen the accused firing at the deceased. In case of Amin Ali and another (supra), the main reason for acquittal of the accused was that the recovery was found to be doubtful. In the instant case, the recovery of pistol from the accused is not found to be doubtful.
18. In view of the facts and reasons discussed above, it is concluded that the conviction and sentence awarded to the appellant by learned trial Court are not calling for interference by this Court by way of instant appeal. It is accordingly dismissed.
JUDGE
.