IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Crl. Jail Appeal No.S-101 of 2016
Crl. Jail Appeal No.S-102 of 2016
Appellant : Nizamuddin son of Abdul Razaque Pahore.
in both matters
Respondent : The State.
Mr. Irfan Badar Abbasi, advocate for the appellant in both appeals.
Mr. Ali Anwar Kandhro, Additional Prosecutor General.
Dates of hearing : 09-11-2020 and 19.11.2020.
Date of Judgment : 03-12-2020.
J U D G M E N T.
NAIMATULLAH PHULPOTO, J.- Appellant Nizamuddin son of Abdul Razaque Pahore was tried by Mr. Shahid Hussain Chandio, learned 2nd Additional Sessions Judge, Jacobabad in Sessions Case No.82/2014 for committing Qatl-i-Amd of his wife Ishrat Khatoon, within the precinct of Police Station B-Section, Thul, District Jacobabad. On the conclusion of the trial, vide judgment dated 23.09.2016 the appellant was convicted under clause (b) of Section 302 of Pakistan Penal Code, 1860 and sentenced to imprisonment for life and to pay Rs.200,000/- (Rupees Two Lac) as compensation to the legal heirs of the deceased in terms of Section 544-A, Cr.P.C. In case of failure thereof, he was directed to suffer S.I. for 06 months more. In the connected/offshoot case being Sessions Case No.83/2014, for offence under Section 23(1)(a), Sindh Arms Act, 2013, appellant was separately tried by the same Court and sentenced to 14 years R.I. Appellant was extended benefit of Section 382-B, Cr.P.C.
2. Facts in main case as given in the impugned judgment are as under:-
“Succinctly the facts of the prosecution case, as narrated in the FIR, lodged on 24.01.2014, by complainant Hamadullah Pahore are that; on the eventful day viz. 24.01.2014, complainant, his sister Mst.Ishrat Khatoon (wife of accused), his cousins namely Shoukat Ali and Liaquat Ali were available at the house of accused Nizamuddin, when at about 01.00 p.m. accused Nizamuddin, armed with gun, came there and his wife Mst. Ishrat Khatoon (sister of complainant) served lunch meal to her husband Nizamuddin. It is alleged that accused Nizamuddin gave ‘Hakal’ to his wife Mst. Ishrat Khatoon that, she always used to complain against him to her brothers, hence she will not be spared, by saying so, he fired from his gun, which hit her at right shoulder and she fell down on the ground and she died at the spot, but due to empty handed, the complainant remained silent, hence the FIR.”
3. During investigation, crime weapon/gun was recovered from the possession of the appellant in presence of police mashirs. Separate FIR vide Crime No.3/2014, for offence under Section 23(1)(a), Sindh Arms Act, 2013 was lodged against the accused on behalf of the State at the same police station. After usual investigation, challan was submitted against the accused for offence under Section 302, PPC and Section 23(1)(a), Sindh Arms Act, 2013. It may be mentioned here that trial Court proceeded with both the cases separately.
4. Trial Court framed charge against the accused in the main case at Ex.4. Accused pleaded ‘not guilty’ and claimed to be tried.
5. In order to substantiate the charge, prosecution examined complainant Hamadullah Pahore (PW-1); Liaquat Ali Pahore (PW-2); Imdad Ali Bhutto (PW-3), who produced the sketch of place of incident at Ex.9/A; PC Muneer Ahmed (PW-4); mashir Abdul Raheem (PW-5); PC Anees Ahmed (PW-6); Dr. Rabia Pathan (PW-7), who produced postmortem report at Ex.13/B; SIP Liaquat Ali Lashari (PW-8); and Inspector Mohammad Raheem Bijarani (PW-9), who produced Chemical Examiner’s report at Ex.15/A and report of Forensic Science Laboratory Larkana at Ex.15/B. Thereafter, prosecution side was closed.
6. In the offshoot/connected case, charge was also framed against the accused at Ex.3, to which he pleaded ‘not guilty’. Prosecution examined PWs PC Anees Ahmed Pahore, Complainant ASI Liaquat Ali Lashari and Inspector Mohammad Raheem Bijarani, who produced Ballistic Expert’s report at Ex.6-A. Thereafter, side of prosecution was closed.
7. Trial Court recorded statement of accused under Section 342, Cr.P.C, in which he claimed false implication and denied the prosecution allegations. Accused did not lead any evidence in defence and declined to give statement on oath in disproof of prosecution allegations. Trial Court after hearing the learned Counsel for the parties and on the assessment of the prosecution evidence, vide judgment dated 23.09.2016 convicted and sentenced the appellant in the main case, as stated above. In the connected case, appellant was also convicted and sentenced under Section 23(1)(a), Sindh Arms Act, 2013 vide separate judgment dated 23.09.2016. Appellant has impugned both judgments passed by the trial Court before this Court, one in the main case and another in the offshoot case. Both cases are connected, evidence of the investigation officer and mashir in both the cases is same, which require same appreciation of evidence by this Court, therefore, I intend to decide both appeals by this single judgment.
8. Learned advocate for the appellant mainly contended that presence of the eye-witnesses at the time of incident was doubtful; that complainant and eye-witnesses were also related to deceased, but eye-witnesses made no efforts to rescue the deceased. It is submitted that deceased was wife of appellant and motive as set up by the prosecution in the FIR was not established at trial. It is also submitted that gun has been foisted upon the appellant to strengthen the prosecution case and report of the Ballistic Expert has been managed. Lastly, it is submitted that prosecution has failed to prove it’s cases against the appellant and prayed for acquittal of the accused.
9. Mr. Ali Anwar Kandhro, learned Addl. P.G. argued that incident had occurred at 1.00 p.m. on 24.01.2014 and FIR was lodged promptly at 2.00 p.m.; that complainant is the real brother of the deceased, he had no motive to falsely implicate the appellant; it is submitted that medical evidence has corroborated the ocular evidence. It is also submitted that appellant was found going armed with unlicensed gun used by him in the commission of the murder and report of the Ballistic Expert was positive. Lastly, it is submitted that prosecution had established the motive at trial, but trial Court had taken the lenient view and convicted and sentenced the appellant to life imprisonment under Section 302(b), PPC. Learned Addl. P.G. prayed for dismissal of the appeal.
10. Arguments heard and perused the record.
MEDICAL EVIDENCE.
11. Lady Dr. Rabia Pathan (PW-7), who had conducted postmortem examination of deceased, stated that she had examined deceased Mst. Ishrat Khatoon at about 4.00 p.m. on 24.01.2014, referred to her by SHO P.S B-Section, Thul and found following injuries on the person of deceased:-
1. Seven lacerated punctured wounds size 1 cm x 1 cm in diameter with inverted margin in circular in shape on right clavicle region (wound of entry), through and through seven lacerated punctured wounds size 1½ cm x diameter with averted margin on the left scapula region 2 and 3 cm a part a way (wound of exit).
Doctor opined that cause of death was shock and hemorrhage as a result of discharge from firearm, wound were sufficient to cause death individually in ordinary course of life. The Injuries were anti-mortem in nature. Probable time between injuries and death was instantaneously and probable time between death and postmortem was 3 to 4 hours. Doctor was cross-examined, but nothing favourable to the accused came on the record. Efficiency and integrity of the doctor have also not been questioned. Trial Court has held that deceased died in the result of firearm injuries sustained by her as described by the medical officer. I am also of the opinion that finding recorded by doctor requires no interference by this Court.
OCULAR EVIDENCE.
12. Complainant Hamadullah Pahore (PW-1) deposed that his sister Mst. Ishrat Khatoon, aged about 31/32 years, was married to accused Nizamuddin Pahore about 10/15 years prior to this incident. Out of said wedlock, she had one daughter and two sons. His sister Mst.Ishrat Khatoon used to complain regarding maltreatment by her husband accused Nizamuddin Pahore. On the day of incident(24.01.2014), he was available in the house of his sister, where his cousins Shoukat and Liaquat were also available; at about 01.00 p.m. accused Nizamuddin Pahore armed with SBBL gun entered into the house. His wife Mst. Ishrat Khatoon served him lunch. Accused asked deceased that she used to complain against him to her brother, so he would not spare her, saying so, accused Nizamuddin fired from his gun, which hit to Mst. Ishrat Khatoon at right side of her chest and fire went through and through from left side of chest, thereafter the accused ran away. Complainant found his sister Mst.Ishrat Khatoon lying dead at spot. Complainant left his cousins Liaquat and Shoukat over the dead body of his sister, went to police station and lodged FIR. After registration of FIR, he had shown the place of occurrence to the police. Police inspected the place of incident and secured blood stained earth from place of occurrence as well as one empty cartridge in presence of mashirs Allahdino and Abdul Raheem. Police shifted the dead body to the hospital through police constable for postmortem and after postmortem the dead body was handed over to the complainant for burial purpose.
13. Eye-witness Liaquat Ali Pahore (PW-2) has deposed that deceased Mst. Ishrat Khatoon was his cousin as well as sister-in-law. On the day of incident (24.01.2014), he along with his brother Shoukat were present in their house, where Mst. Ishrat Khatoon was also available. In the meanwhile, his cousin Hamadullah came there for visiting his sister and also for complaining against accused Nizamuddin regarding his maltreatment to his sister Mst. Ishrat Khatoon. At about 1.00 p.m. his brother Nizamuddin armed with gun came in the house and asked to Mst.Ishrat Khatoon for meals; accused also asked as to why she has complained against him to her brother, she would not be spared and saying so accused Nizamuddin fired from his gun at Mst. Ishrat Khatoon, which hit her on right side of her chest. Thereafter, accused ran away. Complainant then went to police station and lodged FIR against the accused. Police came at place of incident and inspected the place of incident, secured blood stained earth as well as one empty cartridge. Police shifted the dead body to hospital for postmortem. Police also recorded his statement.
14. Mashir Abdul Raheem (PW-5) deposed that on 24.01.2014 complainant Hamadullah showed the place of incident to the police in his presence and in presence of co-mashir Allahdino, it was situated in the house of accused Nizamuddin. Police inspected the place of incident, dead body of Mst. Ishrat was lying in the house of accused, in Village Joungal, Taluka Thul. The blood was also available at the place of incident. Police secured one empty cartridge from place of incident and prepared such memo. Police made him mashir of place of wardhat.
15. PC Anees Ahmed (PW-6) acted as mashir of arrest of accused and recovery of crime weapon, he deposed that on 25.01.2014, he along with ASI Liaquat Ali Lashari and others left PS vide entry No.5, at 1100 hours, for investigation of Crime No.02/2014, for offence under Section 302, PPC, during which, when the police party reached at Joungal, ASI Liaquat Lashari received spy information that wanted accused of above crime, namely, Nizamuddin was going towards Mirzan Shakh. Police party proceeded to the pointed. At about 1430 hours saw the accused going armed with gun, who on seeing the police party tried to run away, but was surrounded and caught hold. ASI Liaquat Ali Lashari secured gun from the accused, unloaded the same and found its barrel empty. During personal search, four live cartridges were also recovered from the side pocket of accused. Gun recovered from accused was without license. ASI sealed the recovered weapon, prepared such mashirnama, which he produced at Ex.12/A. The accused was then brought at P.S, where ASI Liaquat Ali Lashari lodged separate FIR against the accused, on behalf of State vide Crime No.3/2014, under Section 23(1)(a), Sindh Arms Act, 2013.
16. ASI Liaquat Ali Lashari (PW-8) had conducted investigation of this case. He has deposed that on 24.1.2014, he was posted as ASI/ Incharge at P.S B-Section, Thul. On the same day, at 2.00 p.m. complainant Hamadullah appeared at police station and lodged report regarding the murder of his sister Mst. Ishrat Khatoon at the hands of her husband. ASI recorded FIR vide Crime No.2/2014, for offence under Section 302, PPC; thereafter, left to the place of incident along with complainant situated in the house of the accused in village Joungal. ASI inspected it at 1445 hours and found the dead body of Mst. Ishrat Khatoon lying in the house of accused. Investigation officer collected blood-stained earth as well as one empty cartridge of 12-bore from the place of incident, sealed the same separately in presence of mashirs Allahdito and Abdul Raheem. Investigation officer inspected the injuries of Mst. Ishrat Khatoon and prepared such mashirnama in presence of same mashirs. Thereafter, dead body of Mst. Ishrat Khatoon was dispatched to the hospital for conducting the postmortem examination. On the same day, investigation officer recorded statements of the PWs under Section 161, Cr.P.C at the place of incident. On 25.01.2014 investigation officer left police station along with his subordinate staff for arrest of the accused wanted in this case. He received spy information that accused Nizamuddin wanted in this case was going to Village Sharbat Pahore via northern bank of Mirza Shaakh. Police proceeded to the pointed place and caught hold the accused at 1330 hours. Accused was going armed with gun. Investigation officer secured the same from his possession and enquired from the accused about it’s license, to which he replied that it was without license. Thereafter, gun was sealed by ASI in presence of mashirs PC Mohammad Mithal and PC Anis Ahmed. Mashirnama of arrest and recovery was prepared. Thereafter, accused and case property were brought to the police station, where ASI lodged FIR against the accused on behalf of the State vide Crime No.3/2014, under Section 23(1)(a), Sindh Arms Act, 2013. After usual investigation, challan was submitted against the accused. Investigation officer was cross-examined at length. He replied that he found seven holes of firearm on the person of the deceased at the time of inspection of the dead body. He has further replied that eye-witnesses were present at spot and he recorded their statements. He denied the suggestion that he was deposing falsely against the accused at the instance of complainant. Inspector Mohammad Raheem (PW-9) acted as second investigation officer and collected report of the Chemical Examiner and produced it at Ex.15-A and positive report of the Ballistic Expert at Ex.15-B.
17. Learned advocate for the appellant has strenuously argued that eye-witnesses were closely related to the deceased and their presence in the house of the appellant at the time of incident was doubtful. As regards to the contention that eye-witnesses were closely related to the deceased, it may be mentioned here that the law is settled that merely because eyewitnesses are closely related to the deceased is no ground to reject the evidence of such witnesses. In fact close relatives normally like to bring truth before the Court. Record reflects that appellant committed murder of his wife in his house, as deceased frequently complained to her brother/complainant regarding misbehavior of her husband/accused. Present incident occurred at 1.00 p.m. On the day of incident, complainant had come to the house of the accused to see his sister as she was victim of the conduct of the husband. PWs Liaquat Ali and Shoukat Ali, who had witnessed the incident, are the real brothers of the appellant. Out of them, PW Liaquat Ali has been examined by the prosecution. He has clearly deposed that his brother killed his wife. Learned advocate for the appellant submitted that presence of the complainant in the house of the accused at the time of incident was doubtful. It may be observed that it was daytime. Relations between husband and wife were strained. Parents/brothers are always worried about daughters/sisters, if they are unhappy with their husbands. Visit by complainant in the above-said circumstances on the fateful day cannot be viewed by me as improbable or unnatural. At the cost of repetition, it is mentioned that a brother visited his distressed sister to mediate an ongoing dispute between wife and husband cannot be characterized as a witness at the scene per chance. PW Liaquat Ali was the eye-witness of the incident. He is the brother of the appellant. He was present at the house of the brother at the time of incident. Learned defence Counsel has not seriously challenged his presence at the time of incident. Complainant has furnished graphic details of occurrence. Eye-witnesses faced no serious challenge during cross-examination. Ocular evidence is corroborated by the medical evidence. Firearm/gun used by the accused for the commission of the offence was also recovered from him during investigation and report of the Ballistic Expert was positive. Moreover, ocular evidence is corroborated by the medical evidence. It would also be pertinent to mention here that related witnesses some time, particularly in murder cases, may be found more reliable, because they, on account of their relationship with the deceased, would not let go the real culprit or substitute an innocent person for him. Reliance is placed upon cases reported as Sheraz Tufail v. The State (2007 SCMR 518) and Khair Muhammad and another v. State (2007 SCMR 158). In the instant case, eye-witnesses/PWs i.e. complainant Hamadullah and PW Liaquat Ali were closely related to the deceased, but presence of these witnesses at the place of incident at the relevant time was natural and trial Court has rightly believed their evidence. The contention, therefore, has no force.
18. Appellant committed murder of his wife in his house. It was noontime. FIR was promptly lodged by the brother of the deceased within one hour at police Station B-Section, Thul. Complainant was the brother of the deceased and another eye-witness Liaquat Ali is the brother of the appellant. It has come on record that houses of both eye-witnesses are situated in the same premises. Both eye-witnesses have furnished sufficient explanation of their presence at the time of incident. Complainant, who is the brother of the deceased, regarding motive has stated that appellant after marriage with deceased was quarreling her every day. On the day of incident complainant came to the house of deceased/sister for reconciliation between wife and husband. Mashirnama of the place of wardhat prepared by the investigation officer as well as site sketch prepared by tapedar clearly indicate that incident occurred in the house of the appellant. According to the prosecution evidence appellant caused firearm injuries to his wife. Doctor has corroborated the ocular evidence and opined that deceased died of firearm injuries. Gun used by the appellant in the commission of the murder of the wife was also recovered from him, for which separate case under Section 23(1)(a), Sindh Arms Act, 2013 was lodged against the appellant on behalf of the State.
19. Learned advocate for the appellant has mainly argued that deceased has been murdered by someone else. I have found it somewhat difficult to persuade myself by the hypothesis of false implication. Appellant in his statement recorded under Section 342, Cr.P.C. could not explain the murder of his wife in his house.
20. Criticism of the defence Counsel that gun has been foisted upon the appellant and forensic report has been managed, to me, contention carries no weight, for the reasons that police officials, namely, mashir PC Anees Ahmed Pahore, complainant ASI Liaquat Ali Lashari and I.O. Inspector Mohammad Raheem Bijarani had no motive to foist the gun upon the appellant. It may be mentioned here that prosecution has proved main case against accused for committing murder of his wife by means of said firearm in Crime No.02/2014, registered at P.S B-Section, Thul, for offence under Section 302, PPC. Absence of a witness from the public to support the prosecution despite availability, being symptomatic of public apathy towards civic responsibilities does not by itself shadow upon the credibility of official witnesses. Repeatedly it is held by Hon’ble Supreme Court that second to none in status, found otherwise in a comfortable unison on all the relevant details relating to the arrest, search and recovery. Criticism on forensic report Ex.6/A carries no weight as it contains relevant details of the procedure followed by the analyst to confirm that crime empties matched with the firearm. Opinion of the Ballistic Expert is reproduced as under:-
“OPINION: The Microscope examination of the case has revealed as under:
1. One 12 bore crime empty now marked as “C” was FIRED from the above mentioned 12 bore SBBL shot gun No. rubbed in question in view of the following major points i.e. striker pin marks, breech face marks, extractor marks etc are Similar.”
21. In the case of Ibrar Ullah v. The State, Hon’ble Supreme Court of Pakistan vide order dated 27.10.2020 has held as under:-
“3. We have found it somewhat difficult to persuade ourselves by the hypothesis of false implication. Admittedly, the petitioner is a resident of Peshawar; he had apparently no business to attend at the spot wherefrom he was unanticipatedly arrested. Similarly, it is difficult to contemplate his substitution to swap the real offender as the volume of cache being substantial could not be conceivably planted in the absence of a strong motive that does not appear the case. Absence of a witness from the public to support the prosecution despite availability, being symptomatic of public apathy towards civic responsibilities does not by itself shadow upon the credibility of official witnesses, repeatedly held us as second to none in status, found otherwise in a comfortable unison on all the relevant details relating to the arrest, search and recovery. Presence of a police picket has not been disputed by the defence itself. Criticism on forensic report Ex.PE carries no weight as it contains relevant details of the procedure followed by the analyst to confirm the narcotic character of the contraband; acquiesced by the defence during the trial. Belated arrangement by the petitioner of a well wisher to testify in his favour during the trial miserably failed to override positive evidence pointed towards his culpability on all fours. The said defence witness never joined police investigation and came up with a cock and bull story rather late in the day that fails to inspire confidence of even a most unsuspecting listener. Conclusions drawn by the Courts below, on our own independent analysis, have been found by us well within the remit of law, being inconsonance with the principles of safe administration of criminal justice. Petition fails. Leave declined.”
22. For what has been discussed above, the prosecution has proved it’s cases against the appellant beyond any reasonable shadow of doubt. Impugned judgments dated 23.09.2016 passed by trial Court in both the cases do not call for interference, hence, the appeals are dismissed. All the sentences shall run concurrently. Appellant shall be entitled to the benefit of Section 382-B, Cr.P.C.
JUDGE
Qazi Tahir PA/*
Now I would consider, whether evidence of PW-1 complainant Hamadullah and PW No.2, namely, Liaquat Ali, who are brother and brother-in-law of the deceased and Liaquat Ali is the brother of appellant, who had witnessed the incident, is to be discredited on the ground that they are related to the deceased. The law is settled is that merely because witnesses or the eye-witnesses are relatives by itself is no ground to reject the evidence of such witnesses. These witnesses being relatives normally would like to bring truth before the Court.
18. In this case, incident had occurred in the house appellant Nizamuddin situated in Village Joungal. It was daytime incident. Visit by eye-witnesses on the fateful day cannot be viewed as improbable or unnatural. A brother visiting his distressed sister to mediate an ongoing dispute between wife and husband cannot be characterized as a witness arriving at the scene per chance. Eye-witnesses have furnished graphic details of occurrence. They faced no serious challenge during cross-examination. Recovery of gun provided additional corroboration so also positive reports of experts.
As regards the contention of the defence Counsel that eye-witnesses are related to the deceased and thus, interested, therefore, their testimony could not have been believed, it may be pointed out here that mere relationship of a witness with the deceased is no ground for discarding his evidence if he, otherwise appears to be truthful and his presence at the place of occurrence is probable. Mere relationship of a witness with any of the parties would not dub him as an interested witness because interested witness is one who has, of his own, a motive to falsely implicate the accused, is swayed away by a cause against the accused, is biased, partisan, or inimical towards the accused, hence any witness who has deposed against the accused on account of the occurrence, by no stretch of imagination can be regarded as an “interested witness”. In the wake therefore, it proceeds that merely because the witnesses are kith and kin, their evidence cannot be rejected, if otherwise it is trustworthy.