IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Criminal Appeal No. S-40 of 2019
Appellant: Sultan LanjwaniJat,
Through Mr. Ahsan Ahmed Qureshi, advocate
Complainant: Ali Asghar Chandio,
Through Mr. Habibullah G. Ghouri, advocate,
The State: Through Mr. Muhammad Noonari,
D.P.G for the State.
Date of hearing: 03-12-2020& 04-12-2020.
Date of Decision: 17-12-2020.
J U D G M E N T
Zulfiqar Ali Sangi, J.Through instant criminal appeal, the appellantSultan son of Jurial LanjwaniJathas impugned the judgment dated 22.06.2019, passed by the learned I-Additional Sessions Judge/MCTC Kambar in Sessions Case No.506/2009 (re: State V. Sultan LanjwaniJat), culminated from Crime No.317/2009 of P.S. Kambar, for the offence under Sections 302,114,148,149,337-H(2) P.P.C, whereby the trial court has convicted the appellant/accused under section 302 (b) PPC and sentenced him to suffer imprisonment for lifeas Tazir and to pay compensation of Rs.500,000/- to the L.Rs of the deceased in terms of Section 544-A Cr.P.C and in case of default, he shall further undergo simple imprisonment for six months.
2. Brief facts of the prosecution case as per impugned judgment are that on 10.10.2009, the complainant Ali Asghar Chandio lodged FIR at P.S. Kambar stating therein that on the day of incident at 06-00 p.m (evening) due to property dispute, in a public street near his house situated at village Kamal Khan Chandio, the present accused, namely, Sultan Jat (Lanjwani), duly armed with a rifle accompanied by others, namely, Iqbal Chandio, armed with repeater, Abdul Rasheed Chandio, armed with a repeater, Naeem Ahmed Chandio armed with gun killed complainant's father Ali Ahmed @ Haji Aman Chandio at the instigation and in presence of accused Dildar Chandio, armed with a K.K and an unknown accused.
2. After completion of investigation, investigation officer submitted final challan before the court of law. Trial court after completing the formalities framed the charge against the appellant/accused, to which he pleaded not guilty and claimed to be tried.
3. The prosecution in order to prove its case, examinedthe following witnesses:-
P.W-1, complainant Ali Asghar;
P.W-2/eye witness Saddam Hussain Chandio;
P.W-3/eye witness Qurban Ali Chandio;
P.W-4/mashir Abdullah Chandio, who produced original mashirnama of inspection of place of incident & original Danistnama of the deceased;
P.W-5/author Of FIR S.I.P Munwar Ali Chandio,
P.W-6/I.O S.I.P Fida Hussain Langah, who produced original memo of arrest of accused and recovery, carbon copies of DD entries No: 10,19 and 19, memo of recovery of un licensed Repeat and P.S copy of FIR of off shoot case crime No: 342/2009, U/S 24 SAA, 2013 of P.S Kamber, against accused Abdul Rasheed
P.W-7 Tapedar Majid Ali Bhutto,
P.W-8 Dr. Rizwan Ahmed Qureshi, who produced lash chakas form and original post-mortem report of the deceased,
4. Thereafter, learned DDPP representing the State closed the side ofprosecution.Trial Court recorded statement of accused under section 342 Cr.P.C, wherein he simply denied prosecution evidence and prayed for justice. He did not examine himself on oath nor produced any defence witness.
5. After assessment of 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.
6. Learned counsel for the appellant submits that the appellant is innocent, the complainant implicated him due to enmity. Per learned counsel prior to thisincident one person of Lanjwani community was murdered by Candia community; that the complainant and eye witnesses are related to the deceased and are interested; that medical evidence does not support ocular evidence; that in the F.I.R specific injuries have been mentioned, how the complainant knows these specific injuries; that the incident took place at 6-00 p.m and the F.I.R was lodged at 2000 hours with the delay of two hours; that the I.O has not shown source of light for inspection of dead body; that motive was not investigated by the investigation officer properly; that statements under section 161 Cr.P.C of the witnesses were recorded on the next day of the incident and the delay has not been explained; that the enmity was with co-accused Iqbal and not with the present appellant. Lastly he submit that the prosecution has not proved its case against the appellant beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence. He has prayed for acquittal of the appellant/accused.
7. On the contrary, learned advocate for the complainant submits that the F.I.R was lodged promptly and there is no chance of false implication; name of the appellant has been mentioned with specific role; that the appellant took active part with co-accused; ocular evidence is corroborated by medical as well as other documentary evidence; that the appellant was fugitive from law for six years;diary dated 19.03.2015 showed that he surrendered voluntarily after pre-arrest bail and diary dated 12.06.2017 showed that he was admitted on bail, again he jumped the bail; that co-accused Abdul Rasheed also jumped the bail and still is absconder; that there are no reasons to falsely implicate accused and enmity is with co-accused Iqbal not with present accused; that there are no material contradictions in the evidence of P.Ws; that the prosecution proved its case against the appellant beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence. In support of his contentions, he placed his reliance on the case of Ahsan Shahzad and another V. The State and others (2019 SCMR 1165). He has lastly prayed that appeal of the appellant may be dismissed.
8. Learned D.P.G. has submitted that the prosecution has proved its case beyond a reasonable doubt; that the ocular evidence is supported by medical evidence. In support of his contentions, he has placed reliance on the case ofJaved Ishfaq V. The State (2020 SCMR 1414). He lastly submits that appeal of the appellant may be dismissed.
9. I have heard the learned counsel for the respective parties and have gone through the material available on the record with their able assistance.
10. The evidence produced by the prosecution in the shape of ocular evidence and medical evidence coupled with documentary evidence, includes Postmortem report of the deceased, established beyond any shadow of reasonable doubt that on 10-10-2009 at about 06.00 pm at street near the house of complainant, deceased received firearm injuries on his person and was died due to un-natural death at the spot. Prosecution in order to prove the death of deceased as un-natural examined Dr. Rizwan Ahmed Qureshi, who has deposed that he was posted as M.O at Taluka Hospital Kamber. The dead body of deceased Ali Ahmed @ Haji Aman S/o Sono Khan, aged about 55 years, was brought by H.C Habibullah Jakhro of PS Kamber for post mortem, examination and report. Which he conducted and found the following injuries:-
1. A Lacerated punctured wound 02 cm x 0.4 cm on left Axilla.
2. A lacerated punctured wound 01 cm x 0l cm entry wound on left arm.
3. Lacerated punctured wound 0.5 cm x 0.5 cm x exit wound on left arm.
4. Lacerated punctured Wound 01 cm x 0.5 cm entry wound on left forearm.
5. Exit wound lacerated punctured wound 0.5 cm x 0.5 cm on left forearm.
6. Lacerated punctured wound 01 cm x 01 cm x left lumber region.
7. Lacerated punctured wound 01 cm x 01 cm x left lumber region.
8. Lacerated punctured wound 01 cm x 01 cm on top of left hip.
Doctor was of the opinion that the death was occurred due to haemorrhage shock and all injuries were anti-mortem in nature Therefore the question before this court is to see who killed the deceased, to established the case,prosecution witnesses gave their evidence as under:-
11. Prosecution has examined(Complainant) Ali Asghar Chandio, who has deposed that this incident took place on 10.10.2009, at about 06:00 a.m. on the day of incident, he alongwith his father Ali Ahmed, his brother Saddam Hussain, his maternal uncle Qurban Ali was present in his house, he heard a call from outside of his house that some guests have come in his guest house, located near his house, hence he accompanied by them came out of his house and proceeded towards the guests house in order to meet with them, meanwhile in the street he saw that 06 armed persons were standing in the street, whom he identified as Dildar S/o Wali Muhammad Chandio armed with K.K, Iqbal S/o Khair Muhammad Chandio armed with repeater, Abdul Rasheed S/o lqbal Chandio, armed with repeater, Naeem Ahmed S/o Shaman Chandio, armed with gun, Sultan S/o Muhammad Jurial LanjwaniJatt armed with rifle as well as one unknown accused. As soon as he and others came near to them, accused Dildar Chandio instigated rest of the accused to commit murder of Ali Ahmed @ Haji Aman Chandio, hence all the accused fired with their respective weapons straightly at his father Ali Ahmed @ Haji Aman Chandio which hit him and he having raised cries fell down on the ground. Thereafter, all accused made aerial firing and also raised slogans and escaped towards their houses,he found multiple injuries onthe person of the deceased, such as left arm (through and through) and wrist of left arm (through and through), two injuries on left waist, injury on left thigh, which were bleeding. He deposed that he having left his uncle Qurban and brother Saddam Hussain at the body of his deceased father, went to PS Kamber where he lodged the FIR.He further deposed that on the same date, at about 10:30 p.m, I.O inspected dead body in presence of mashirs namely Abdullah Chandio and Najamuddin and thereafter inspected place of incident wherefrom he collected blood stained earth as well as empties (15 cartridges of 12 bore, 20 empties of K.K and 05 empties of 07 mm rifle) and sealed the same separately and also prepared Danistnama as well as mashirmamas. He deposed that dead body of his father was brought at Government Hospital Kamber, where his post-mortem was conducted and thereafter his dead body was handed over to him. He was cross examined at length but I could not find any substance favourable to the appellant.
12. Prosecution examined Saddam Hussain(eye witness), who has deposed that Complainant Ali Asghar is his elder brother and deceased Ali Ahmed @ Haji Aman was his father. PW Qurban Ali is his uncle. This incident took place on 10-10-2009 in evening hours, on the day of incident he alongwith his father Ali Ahmed, his brother Ali Asghar, his maternal uncle Qurban Ali was present in their house, where he heard a call from outside of the house that some guests have come in their guest house hence he accompanied by them came out of the house and proceeded towards the guest house in order to meet with guests. Meanwhile in the street on the way towards the guest house/Otaque, at about 06:00 p.m. he saw that 06 armed persons were standing,whom he identified as Dildar S/o Wali Muhammad Chandio armed with k.k. Iqbal S/o Khair Muhammad Chandio armed with repeater, Abdul Rasheed S/o Iqbal Chandio, armed with repeater, Naeem Ahmed S/o Shaman Chandio armed with gun, Sultan S/o Muhammad Jurial LanjwaniJat, armed with rifle as well as one unknown accused. As soon as they came near to accused, accused Dildar Chandio instigated rest of the accused to commit murder of Ali Ahmed @ Haji Aman Chandio, hence all of the accused fired with their respective weapons straightlyat his father Ali Ahmed @ Haji Aman Chandio, which hit him and he having raised crises fell down on the ground. Thereafter all accused fired in the air and raised slogans and escaped towards their houses. He deposed that on inspection they found multiple injuries on his person, such as left arm through and through and wrist of left arm through and through, two injuries on left waist, injury on left thigh and injuries were bleeding and was died. He deposedthat his brother lodged such FIR. He was cross examined at length but evidence was not shattered by the defence.
13. Prosecution has also examined Qurban Ali(eye witness), who has deposed that Complainant Ali Asghar is his maternal nephew. Deceased Ali Ahmed @ Haji Aman was his brother-in-law. On 10-10-2009, in evening hours, he alongwith his brother-in-law Ali Ahmed @Haji Aman and maternal nephews namely Ali Asghar and Saddam Hussain was present in the house and suddenly there was a call from outside about coming of some guests at the guest house, hence they came out of the house and on the way, while proceeding towards their guest house, at about 06:00 p.m and saw that 06 armed persons were standing in the street, whom he identified as Dildar S/o Wali Muhammad Chandio armed with K.K, Iqbal S/o Khair Muhammad Chandio, armed with repeater, Abdul Rasheed S/o Iqbal Chandio, armed with repeater, Naeem Ahmed S/o Shaman Chandio, armed with gun, Sultan S/o Muhammad Jurial LanjwaniJatt, armed with rifle as well as one unknown accused. On seeing them, accused Dildar Chandio instigated other accused to commit murder of Ali Ahmed@ Haji Aman Chandio, hence all accused started firing with their respective weapons straightly at Ali Ahmed @ Haji Aman Chandio, with intention to commit his murder, which hit him and he having raised cries fell down on the ground. Thereafter, all the accused by making aerial firing had escaped towards their houses. He alongwith complainant Ali Asghar and PW Saddam inspected Ali Ahmed and found that he sustained, multiple injuries on his person, such as left arm (through and through) and wrist of left arm through and through, two injuries on left waist, injury on left thigh and injuries were bleeding and he was died, such FIR was registered. He was also cross examined at some length but defence counsel had not shattered his evidence.
14. Prosecution examined Abdullah Chandio(mashir), who has deposed that on 10-10-2009, he was present at the place of incident, which was a public street besides the house of Ali Asghar, meanwhile complainant Ali Asghar Chandio, came alongwith SIO Fida Hussain Langah there and oneNajamuddin Chandio was also present there. SIO Fida Hussain Langah inspected the dead body of deceased Ali Ahmed @ Aman in their presence and found multiple firearm injures. He deposed that the injuries were bleeding. Thereafter, investigation officer collected blood stained earth from the spot and sealed it in a packet of cigarette, he also collected 15 empty cartridges of 12 bore, 20 empties of K.K as well as 05 empties of 07 mm rifle and sealed such recovered empties in one piece of cloth and prepared mashirnama of inspection of place of incident, dead body as well as collection of blood stained earth and empties. He also prepared Danistnama of the deceased. He was cross examined by the defence counsel but I could not find any substance favourable to the appellant.
15. Prosecution has also examined author of F.I.R Munwar Ali, who has deposed that on 10.10.2009, he was posted as A.S.I. at P.S. Kamber at about 08-00 p.m, complainant Ali Asghar came at Police Station and narrated the facts of cognizable offence of the murder of his father Ali Ahmed @ Haji Amanby the accused persons, namely, Dildar, Iqbal, Abdul Rasheed, Naeem, Sultan and one unknown accused. He lodged the F.I.R as per his verbatim.
16. Prosecution has also examined A.S.I. Fida Hussain Langha, (Investigation Officer), who deposed that on 10.10.2009, he was posted as A.S.I. at P.S. Kamber. He received FIR of this case from ASI Munawar Ali Chandio for investigation purpose. During investigation he inspected the place of incident on 10.10.2009 at 10-30 p.m, where he saw that the dead body of deceased Ali Ahmed @ Aman Chandio was lying on the ground, wearing white shirt and Potro, which were stained with blood. During inspection of the dead body he found firearm injuries from such blood was oozing hence he collected the blood stained earth and sealed the same in a packet of cigarette in presence of mashirs, namely Abdullah and Najamuddin. He collected 15 cartridges of 12 bore, 20 empties of K.K and 05 empties of 07 M.M rifle and sealed the same and prepared such memo of inspection of place of incident and prepared Danistnama of deceased Ali Ahmed @ Haji Aman in presence of same mashirs. Thereafter on 24-10-2009, he arrested accused Abdul Rasheed Chandio and prepared such memo in presence of mashirs namely Abdullah and Najamuddin. Thereafter on 28.10.2009, he took out the accused Abdul Rasheed from the lock-up of PS Kamber and interrogated him under an entry No. 18 at 1500 hours. As such during interrogation he admitted to produce the crime weapon viz a repeater of 12 bore and produced an unlicensed repeater of 12 bore from the lands of Sanaullah which he used in commission of the murder of Ali Ahmed @ Haji Aman, he prepared such memo in presence of same mashirssuch F.I.R U/S 13 EAOwas registered, he concluded investigation and submitted challan in the Court having jurisdiction.
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 along with other co-accused persons caused firearm injuries to 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, deceased received 8 separate firearm injuries and as per the opinion of the doctor all injuries were anti-mortem. All the witnesses denied direct enmity with the appellant during their cross examination and deposed that they have enmity with co-accused Iqbal and the same is also admitted by the appellant in his statement under section 342 Cr.P.C, which suggest that there was no motive to falsely implicated the appellant in the case.
19. Plea raised by the learned counsel for the appellant that the witnesses are relative to the deceased and are interested, therefore, their evidence cannot be relied upon has no force as although the witnesses are relative to the complainant and the deceased but they have no enmity with the appellant to involve him in the murder case. The enmity was admitted on behalf of the appellant that it was in between complainant and co-accused Iqbal and not with the present appellant.However, the evidence produced by the prosecution is reliable, trustworthy and confidence inspiring which was supported by the medical evidence as discussed above. In the case of NASIR IQBAL @ NASRA and another V. The STATE (2016 S C M R 2152) Honourable Supreme Court has held as under:-
"In the above circumstances, we found that the ocular evidence furnished by the eye-witnesses to be credit worthy and confidence inspiring and we have not been able to observe any defect or material lacunas in their evidence; their presence at the spot had been established beyond any shadow of doubt; both the eye-witnesses were of course closely related to the deceased but fact of the matter remains that their mere relationship would not render them to be interested or partisan witnesses when the same has been corroborated with the medical evidence as well as the recoveries of crime weapon and the motive has fully been proved as such in our view no interference is required in conviction of the appellants."
In the case of Lal Khan v. State(2006SCMR 1846), Hon’ble Supreme Court has held as under:-
... The mere fact that a witness is closely related to the accused or deceased or he is not related to either party, is not a sole criteria to judge his independence or to accept or reject his testimony rather the true test is whether the evidence of a witness is probable and consistent with the circumstances of the case or not.
20. Another plea raised by the learned advocate for the appellant that there were general allegation against the appellantof firing upon the deceased and it has not been established beyond doubt as to by whose fire shot the deceased had been killed has too no force as all the witnesses deposed that the appellant along with other co-accused actively participated in the commission of offence and fired from weapon upon the deceased which hit to deceased and the evidence of witnesses was corroborated by medical evidence including the recovery of crime empties from the place of vardat, in similar circumstance where trial court awarded life imprisonment to the accused and the High court enhanced the sentence by allowing revision application filed by the complainant and awarded death sentence, However, Honourable Supreme Court set-aside the view taken by the High Court and restored the conviction awarded by the trial court in case of Muhammad Riaz and another V. The State and another (2007 SCMR 1413), it was held as under:-
6. A glance at the particulars of injuries would clearly show that these injuries were caused from some distance. In the ordinary course of events, it would thus, be difficult to ascertain as to which of the injuries was caused by which of the appellants. Even one of the injuries could have been caused by the fire attributed to co-accused Abdul Khaliq who stands acquitted at the trial and is, no longer available before this Court in the present appeal and petition for leave to appeal. The Medical Officer has pointed out that both injuries were sufficient to cause death in the ordinary course of nature. It would thus, mean that both the injuries were individually and collectively sufficient in the ordinary course' of nature to cause the death of the deceased. During the course of cross-examination, Medico-Legal Expert did not deny the possibility that both the injuries on the person of the deceased could be the result of a single fire. Since it is very difficult and not easily ascertainable as to which of the accused out of three assailants was responsible for causing these injuries, discretion in the matter of sentence exercised by the trial Court in our considered view does not suffer from perversity or any arbitrariness.
21. As regards to the contention of learned counsel for the appellant that crime weapon used by the appellant at the time of offence was not recovered, therefore, the appellant cannot be connected with the alleged murder of the deceased, has no force in view of the fact that all the prosecution witnesses supported the case of prosecution by deposing that the appellant along with other co-accused directly fired from the rifle which hit the deceased and their direct evidence is further corroborated by medical evidence as the doctor who examined the deceased had found 8 separate firearm injuries, further corroborated by the recovery of the empties of 7mm rifle from the place of vardat. It is settled by now that where charge was proved by other direct, natural and confidence inspiring evidence, then non-recovery of crime weapon was not fatal to the prosecution case. Reliance is placed on the case of SikanderTeghanialias Muhammad Bux Teghani V. The State(2016 Y L R 1098).
22. During arguments learned counsel for the appellant pointed out some minor contradictions and discrepancies in the evidence of witnesses which in my view are not sufficient to hold that the case of prosecution is 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.”
23. 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 the empties of rifle used by the appellant from the place of vardat so 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.
J U D G E