IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Appeal No. S-96 of 2012
Appellant: Saeed Ahmed Choliani,
Through Mr. Saeed Ahmed B. Bijarani, advocate.
Complainant: Muhammad Ramzan
Through Mr. Safdar Ali Ghouri, advocate.
The State: Through Mr. Muhammad Noonari,
D.P.G for the State.
Date of hearing: 23-11-2020.
Date of Decision: 10-12-2020.
J U D G M E N T
Zulfiqar Ali Sangi, J.Through instant criminal appeal, the appellantSaeed Ahmed Choliani has impugned the judgment dated 22.11.2012, passed by the learned Additional Sessions Judge, Kandhkot in Sessions Case No. 45/2009, culminated from Crime No. 100/2008 of P.S. Karampur, for the offences under Sections 302,34 P.P.C, whereby the trial court has convicted and sentencedthe appellantSaeed Ahmed Choliani for the offence punishable under section 302 (b) PPC as Tazirand sentenced him to suffer imprisonment for life and to pay fine of Rs.100,000/-. The appellant shall further suffer R.I for one year in case of non-payment of the fine. It was also ordered that the amount of fine, if recovered, shall be paid as compensation to the legal heirs of deceased U/S 544-A Cr.P.C. The benefit under section 382-B Cr.P.C was also extended to the appellant.
2. Brief facts of the prosecution case are that the complainant Muhammad Ramzan lodged the F.I.R on 11.10.2008stating therein that on 10.10.2008, he was at his land along with his nephews Shahbaz, Jamaluddin and relative Abdul Haque and saw cattle destroying/spoiling his paddy crop. They took the cattle out and proceeded towards cattle pen. At about 11-00 a.m, they saw accused Saeed Ahmed, Hazaro, Dodo and Illahi Bux with lathis, who came running by challenging them to leave their cattle otherwise they will be killed. The complainant party informed that the cattle had damaged their crop, they would shift cattle to cattle pen, meanwhile accused Saeed inflicted lathi blow with intention to commit the murder to Shahbaz on the right side of his head, accused Hazaro also inflicted lathi blow to Shahbaz, which hit on his back side, accused Dodo also inflicted lathi blows to Shahbaz, which hit on his lower side of waste, Shahbaz fell down and went unconscious, the accused went away to their house with cattle. The complainant party shifted the injured Shahbaz to RHC hospital Karampur through police, where doctor referred him to Shikarpur seeing him in serious condition, wherefrom the doctor referred him to CMCH, Larkana, where Shahbaz succumbed to the injuries at about 11-15 p.m. Thereafter the complainant lodged the above F.I.R.
3. After completion of investigation, the challan was submitted before the competent court. After completing the formalities formal charge was framed against the accused, to which hepleaded not guilty and claimed to be tried.
4. The prosecution in order to prove its case, examined P.W-1/ doctor Noor Ahmed as Ex.8, who produced Medical certificate and post mortem of deceased Ex.8-A and Ex.8-B respectively; P.W-2/complainant Muhammad Ramzan as Ex.9, who produced F.I.R as Ex.9-A, P.W-3 Jamaluddin as Ex.10, P.W-4 Muhammad Ishaque as Ex.11, who produced inquest report, danistnama, mashirnamas of seeing the dead body, place of vardat and arrest of accused Saeed Ahmed and recovery of lathi at Ex.11-A to Ex.11-E, respectively; P.W-5 P.C Fida Hussain as Ex.12, who produced receipt as Ex.12-A; P.W-6 H.C Wazeer Ali as Ex.13, who produced the mashirnama of injuries and letter addressed to M.O as Ex.13-A and 13-B respectively, P.W-7, S.I.P Agha Najeebullah as Ex.14, P.W-8 mashir Shah Dost as Ex.15, who produced mashirnama of arrest of accused Illahi Bux as Ex.15-A.Thereafter, learned DDPP representing the State closed side of prosecution evidence vide his statement at Ex.16.
5. Trial Court recorded statements of accused under section 342 Cr.P.C, wherein he denied the prosecution allegations, claimed himself to be innocent and victim of admitted enmity between Bajkani and Choliyani communities. He did not examine himself on oath but examined D.Ws, namely, Abdul Latif and Sain Bux as Ex.15 and 16 respectively.
6. After assessment of the evidence, learned trial court has passed the above impugned judgment and convicted the appellant/accused as stated above. Being aggrieved by the said judgment, the appellant has preferred the instant criminal appeal.
7. Learned counsel for the appellant submits that the evidence adduced by the prosecution at the trial is not properly assessed and the evidence is insufficient to warrant the conviction of the appellant; that there is enmity in between Bajikani and Choliani tribes, therefore the appellant has falsely been involved in this case; that the learned trial Judge has acquitted the co-accused Illahi Bux on the same charge; that the doctor has stated that clothes of deceased were not found with blood; that the witnesses were not present and it is unseen evidence; that there is delay of 05 days. Learned counsel has lastly prayed that appeal of the appellants may be allowed and he may be acquitted after giving him the benefit of the doubt. He has relied upon the case laws reported as Abdul Jabbar and another versus The STATE(2019 SCMR 129), Dhani Bux versus The State(SBLR 2011 Sindh 1653), unreported judgment of this court dated 06.03.2020 passed in Cr. Appeal No.S-91 of 2016 and case of Khizar Hayat Son of Hadait Ullah (PLD 2019 SC 527)
8. On the contrary, learned advocate for the complainant submits that ocular evidence is supported by medical evidence; that injury No.1 caused the death of deceased, which is against the appellant; that plea of alibai was not put to prosecution witnesses during their evidence norwas stated during statement U/S 342 Cr.P.C; that two D.Ws were examinedwho also gave contradictory version; that prosecution proved its case against the appellant beyond a reasonable doubt. In support of his contentions, he has relied upon the cases reported as Muhammad Gul V. The State(1970 SCMR 797), Fayyaz alias Fiazi V. The State(2017 SCMR 2024), Rehmat Khan and another V. The State and others(2017 SCMR 2034) and Muhammad Anwar V. The State(2018 YLR 259).He has lastly prayed that appeal of the appellants may be dismissed.
9. Learned D.P.G. submitted that the prosecution has proved its case beyond a reasonable doubt; that the ocular evidence is supported by medical evidence; that lathiuse in the commission of offence was recovered from the possession of appellant; that no major contradictions are pointed out by the defence counsel which create doubt in the case of prosecution. He lastly submits that appeal of the appellant may be dismissed.
10. I have heard the learned counsel for the respective parties and have gone through the material available on the record with their able assistance.
11. The evidence produced by the prosecution in the shape of ocular evidence and medical evidence coupled with documentary evidence, includes Postmortem of deceased, established beyond any reasonable doubt that on 10-10-2008 at about 11.00 am at lands of the deceased, deceased received injuries on his person and later on was died due to un-natural death in the hospital result of receiving hard and blunt injuries. Prosecution in order to prove the death of deceased as un-natural examined P.W -1 Dr. Noor Ahmed, who deposed that on 10.10.2008, he was posted as medical officer at RHC Karampur and received injured Shahbaz referred by SHO Karampur for treatment. On examination he found following injuries:-
Injury No.01 :- One bruise with swelling measuring 07 1/2 c.m x 03 c.m present on the right parital region of skull.
Injury No.02:- One bruise measuring 05 c.m x 02 c.m present on back of right abdomen.
Injury No.03:- One bruise measuring 02 c.m x 02 c.m present on the back of chest.
Doctor deposed that the injuries were fresh at the time of examination. Injuries No.01 and 02 were reserved for X-ray examination while injury No.03 declared as Jurh-Ghyr-Jaifah-Damiyah. The injuries were caused by hard and blunt substance. He issued such medico legal certificate. The injured being serious condition was referred to R.B.U.T. Civil Hospital Shikarpur. He has further deposed that on 10.10.2008, he was present on duty and received the dead body of deceased Shahbaz son of Yar Ali Bajkani, the dead body was identified by Shah Dost son of Imam Khan (cousin) and Soomar son of Haji Tagio (uncle) of the deceased. The dead body was referred by S.H.O P.S Karampur through P.C Fida Hussain. He started post mortem at 10-50 a.m and finished at 11-50 a.m. On external examination, he found same injuries as mentioned above and on internal examination, he found that right parietal bone fractured, blood vessels ruptured at the side of injuries, right kidney lacerated. Remaining all other organs were healthy. From external as well as internal examination, he was of the opinion that death was due to shock and hemorrhage. The injury No.01 was sufficient to cause death in ordinary course of nature.The injuries were caused from hard and blunt substance. The injuries were anti mortem in nature. Time between injuries and death about 37 hours and 30 minutes and between death and post mortem 11 to 12 hours. Therefore the question before this court is to see who killed the deceased for which the prosecution witnesses gave their evidence as under:-
12. P.W-2 Muhammad Ramzan (complainant/eye witness) was examined by the prosecution. He deposed that incident took place on 10.10.2008 at about 11-00 a.m, in which Shahbaz was murdered. He deposed that on the day of incident he along with his sister's son Jamaluddin and relative Abdul Haq and nephew Shahbaz had left their house to look after the paddy crop in their lands. When they reached at the lands, they saw that goat cattle of the accused persons was grazing/damaging their paddy crop and they drove the goats and were taking towards DHAK. In the meanwhile, accused Saeed Ali, Hazaro, Dodo and Illahi Bux armed with lathis were came there and raised hakal to leave the cattle otherwise they will kill them. He further deposed that complainant party replied them that their cattles had damaged their crop so many times, therefore, they would not leave the cattle and would take towards DHAK. On such accused Saeed gave a lathi blow to his nephew Shahbaz with intention to commit his murder, which hit him on his right side of head. Accused Hazaro also gave a lathi blows to Shahbaz, which hit him on back side. Accused Dodo gave a lathi blow to Shahbaz which hit him on his waste. On receiving lathi injuries Shahbaz fell down on the ground and went unconscious. All accused forcibly got released their cattles and took away to their houses. He further deposed that they took Shahbaz and brought him at their house wherefrom after arranging conveyance brought him at police station Karampur, wherefrom obtained letter for treatment and brought him in Karampur hospital, wherefrom due to worst condition, Shahbaz was referred to Shikarpur hospital and they brought Shahbaz at Shikarpur hospital, wherefrom he was also referred to CMC Hospital Larkana, where Shahbaz was admitted. He further deposed that after some treatment, Shahbazsuccumbed to the injuries at about 12-00 p.m or 01-00 a.m (night). On the next day, they took body and brought at police station Karampur, where his FIR was registered. After FIR, dead body was referred to Karampur Hospital, after post mortem the dead body was returned to him. He deposed that he shown place of vardat to police on the same day. This witness was cross examined at length and during cross examination he stated that first injury was received by injured Shahbaz from his right side, while second and third injury was received by deceased in his standing and soon after receiving third injury he fell down and went unconscious. The complainant in reply to the suggestion made by the defence counsel, stated that "It is incorrect to suggest that my nephew Shahbaz was given injuries by some unknown persons and incident is unwitnessed one. It is incorrect to suggest that I have given the names of the present accused in this case due to our old enmitywith Choliyani community."
13. P.W-3 Jamaluddin (eye witness) was examined by the prosecution, who deposed that this incident was took place on 10-10-2008 at 11-00 a.m. On the same day, he along with complainant Muhammad Ramzan, Abdul Haque and deceased Shahbaz left their house for looking after the crops situated at their lands. When they reached at the lands and saw goat cattles belonging to accused Saeed were grazing in their paddy crop. They drove cattle from paddy crop and were taking the same to DHAK and covered distance of about 100 paces, then saw accused Saeed, Hazaro, Dodo and Illahi Bux were coming towards to them by raising hakals and all accused were armed with lathis. They issued threats to leave the cattle otherwise they will be killed. Accused Saeed gave a lathi blow to Shahbaz whichhit him on his right side of head, Hazaro caused lathi blow to Shahbaz, which hit him on his back side and then accused Dodo caused lathi blow to Shahbaz, which hit him at waste, Shahbazfell down and went unconscious, thereafter accused forcibly took their cattle and went away towards their house. They brought injured to their house and after arranging the conveyance, they brought Shahbazat police station Karampur, then towards Karampur Hospital and was finally referred to Larkana hospitals due to the injuries. He further deposed that on the next date, complainant along with dead body came at their village and police recorded his statement. He was cross examined at length by the defence counsel but the defence counsel failed to create serious dent in the prosecution case, however some minor discrepancies are available in the evidence the same are not sufficient to hold case of the prosecution as doubtful.
14. P.W-4 ASI/SIO Muhammad Ishaq (Investigation Officer) was examined by the prosecution, who deposed that on 11.10.2008, he was posted as SIO at police station Karampur and received F.I.R for investigation, during investigation he inspected the dead body of deceased, which was brought by complainant at police station and prepared inquest report of the dead body of the deceased Shahbaz. He deposed that he dispatched dead body for post mortem and prepared danastnama of dead body of deceased Shahbaz in presence of mashirs. He further deposed that he visited place of vardhat on the pointation of complainant Muhammad Ramzan at 12-00 noon in presence of same mashirs but nothing was secured, however he found the foot prints of persons at place of vardat and prepared such mashirnama. He recorded statement of P.Ws Jamaluddin and Abdul Haque under section 161 Cr.P.C. On 20.10.2008. He deposed that he arrested accused Saeed Ahmed from Hazaro bridge and recovered lathi, prepared mashirnama. After completing investigation he submitted challan. He was cross-examined by the defence counsel and during cross examination he stated that deceased was having three injuries, one on head, one on waist and the third on back side. No enmity or ill-will was suggested against the investigation officer I found the evidence of investigation officer as reliable, trustworthy and confidence inspiring.
15. Prosecution examined P.C Fida Hussain, who has deposed that on 11.10.2008, he was posted as P.C in investigation team of police station Karampur. On the same day, dead body of deceased Shahbaz was handed over to him by A.S.I. Muhammad Ishaque Gujrani for post mortem from RHC Karampur. He brought dead body at RHC Karampur and after post mortem, handed over the same to complainant Muhammad Ramzan. He also obtained such receipt from complainant Muhammad Ramzan. He deposed that last worn clothes viz. One shalwar and one kamees were handed over to him by the Medical Officer, which he handed over to the I.O.Prosecution also examined Head Constable Wazeer Ali, who has deposed that on 10.10.2008, he was posted as Head Constable at P.S. Karampur. It was 03-00 p.m, when the injured Shahbaz son of Yar Ali by caste Bajkani was brought at P.S. by Shah Dost and Muhammad Hassan. He, by keeping entry in roznamcha bearing entry No.11, prepared mashirnama of injuries of injured Shahbaz in presence of mashirs. Thereafter he referred injured to Medical Officer RHC Karampur for medical treatment and certificate. Prosecution also examined S.I.P Agha Najeebullah, who has deposed that on 11.10.2008, he was posted as S.H.O at P.S. Karampur. On the same day complainant Muhammad Ramzan son of Haji Taghio by caste Bajkani had appeared at P.S., narrated facts of cognizable offence in respect of murder of his nephew Shahbaz son of Yar Ali, as such he recorded his statement in verbatim and incorporated in 154 Cr.P.C book bearing Crime No.100/2008. After registration of F.I.R, he handed over the copy of the same to investigation officer of P.S. Karampur for conducting investigation. These witnesses were cross examined but I do not find anything favourable to the appellant.
16. Prosecution examined (Mashir) Shah Dost, who has deposed that he is mashir in this case. On 10.10.2008 at 1-00 p.m, police inspected the injuries of injured Shahbaz in his presence and in presence of co-mashir Muhammad Hassan at police station. The police also noted three injuries received by the injured. The police then prepared such mashirnama. Thereafter the injured was referred to CMC hospital Larkana however the injured succumbed to injuries at CMC hospital. The dead body was again brought at police station where the police inspected the same in his presence and in presence of co-mashir Muhammad Hassan, the police prepared such mashirnama. On 11.10.2008 at 2-00 p.m police visited the place of vardat in his presence and co-mashir Muhammad Hassan, Police noticed the foot prints of four accused, prepared such mashirnama. He deposed that on 20.10.2008 at 12-00 noon police arrested accused Saeed Ali from Hazaro Shakh and accused Illahi Bux on 07.03.2020 at 1300 hours from Jamal link road in his presence and co-mashir Muhammad Hassan. Police prepared such mashirnamas separately in their presence. He was cross-examined in some length but his evidence was not shattered by the defence counsel.
17. The evidence produced by the prosecution was reassessed and on reassessment of the entire evidence the important part of which discussed above and after hearing learned advocate for both the parties, I find that the prosecution has proved its case against the appellant for the offences charged beyond shadow of reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence.
18. The oral evidence given by the eye witnesses including the complainant supported the case of prosecution, they specifically deposed that the appellant Saeed Ahmed caused lathi below to the deceased which hit on right side of the head of the deceased and the medical evidence is supportive to the oral evidence, as per medical evidence produced by the prosecution while examining the doctor who conducted the postmortem of the deceased the said injury caused by the appellant was sufficient to cause death in ordinary course of nature. As per the opinion of the doctor the injuries were caused from hard and blunt substance and the injuries were anti mortem in nature. The lathi used in the commission of offence was also recovered from the possession of the appellant.
19. During arguments learned counsel for the appellant pointed out some minor contradictionsand discrepancies in the evidence of witnesses which in my view are not sufficient to hold that the case of prosecution as doubtful. It is settled by now that, where in the evidence, prosecution established its case beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence supported by other viz medical and circumstantial evidence then if there may some minor contradictions which always are available in each and every case such may be ignored, as has been held by Honourable Supreme Court in case of Zakir Khan V. The State {1995 SCMR 1793}, relevant paragraph is reproduced as under:-
“13. The evidence recorded in the case further indicates that all the prosecution witnesses have fully supported each other on all material points. However, emphasis has been laid by Mr. Motiani upon the improvements which can be found by him in their respective statements made before the Court and some minor contradictions in their evidence were also pointed out. A contradiction, unlike an omission, is an inconsistency between the earlier version of a witness and his subsequent version before the Court. The rule is now well established that only material contradictions are to be taken into consideration by the Court while minor discrepancies found in the evidence of witnesses, which generally occur, are to be overlooked. There is also a tendency on the part of witnesses in this country to overstate a fact or to make improvements in their depositions before the Court. But a mere omission by witness to disclose a certain fact to the Investigating Officer would not render his testimony unreliable unless the improvement made by the witness while giving evidence before the Court has sufficient probative force to bring home the guilt to the accused.”
20. The contention of learned advocate for the appellant that co-accused Illahi Bux was acquitted by the trial court on the same set of evidence therefore the principal of falsus in unofalsus in omnibus is applicable in the case has no force as the co-accused was acquitted by the trial court as no role/overact was assigned against him by the prosecution and was only shown to be present at the place of incident along with the appellant and other accused persons. Prosecution failed to established that appellant in furtherance of his common intention committed the offence, However evidence produced by the prosecution established the case against the appellant Saeed Ahmed and the allegation against the present appellant was that he caused fatal bellow to the deceased same was supported by medical as well as circumstantial evidence as has been discussed above.Acquittal of co-accused has not been challenged by the complainant or the State, in such a situation Honourable Supreme Court of Pakistan in case of MUNIR AHMAD and another V The STATE and others( 2019 SCMR 79),has held as under:-
4. As stated in para 1 above, four persons including Munir Ahmad (appellant) were nominated in the FIR. Out of them three namely Munir Ahmad, Khurshid and Ibrahim were attributed joint role of firing at the deceased. Firearm injury on the person of AsifRaza injured was attributed to Muhammad Aslam. Muhammad Ibrahim and Muhammad Aslam were acquitted by the learned trial court and Criminal Appeal No.1954 of 2009 filed by the complainant against their acquittal was dismissed by the learned appellate court, which has not been assailed any further either by the complainant or by the State. Khurshid Ahmad was acquitted by the learned appellate court. The question which requires consideration by this Court is as to whether the evidence which has been disbelieved to the extent of three co-accused of the appellant who have been acquitted by the learned courts below can be believed to the extent of the appellant? By now it is well settled that principle of falsus in unofalsus in omnibus is not applicable in our system designed for dispensation of justice in criminal cases and courts are required to sift grain from the chaff in order to reach at a just conclusion. If some independent and strong corroboration is available the set of witnesses which has been disbelieved to the extent of acquitted co-accused of the appellant can be believed to the extent of the appellant.
21. The evidence produced by the appellant in his defence was also carefully examined, both the DWs gave contradictory evidence and stated that the appellant was available with them at the time of incident both the DWs given separate place of availability of the appellant at the time of incident therefore their evidence is not reliable, trustworthy and confidence inspiring. D.W P.C Abdul Lateefdeposed that he knew accused Saeed Ahmed and Illahi Bux and complainant. The accused used to reside in village Phalai Choliyani at the time of incident. There is murderous enmity in between Choliyani and Bajkani communities both the accused remained with him on the day of incident from 10-00 a.m to 12-30 p.m. However the D.W Sain Bux deposed that he knew the complainant and accused. The accused attended a gathering of recitation of Holy Quran on the day of incident. The accused came at about 10-00 a.m and went back at about 12-30 p.m. Both the DWs are not supporting each other therefore their evidence is not beneficial to the appellant.
22. Thus based on the discussion made hereinabove I am of the considered view that the prosecution has proved its case beyond a reasonable doubt against the appellant by producing reliable, trustworthy, and confidence-inspiring oral evidence as well as medical evidence, recovery of lathi used while committing the offenceso also the documentary evidence in support of the same. I, therefore, uphold all the sentences, fines, and penalties for each offence in the judgment whilst dismissing the appeal.
JUDGE