IN THE HIGH COURT OF SINDH, SUKKUR BENCH, SUKKUR

Cr. Appeal No.S-192 of 2019

Appellant: Liaquat Ali through Mr. Muhammad Ali Dayo, Advocate.

State: Through Mr. Khalil Ahmed Maitlo, DPG

Date of hearing: 15.10.2021

Date of decision: 26.11.2021

J U D G M E N T

Zulfiqar Ali Sangi, J: Through this appeal, the appellant has assailed the judgment dated 28.08.2019 (impugned herein) passed by learned Additional Sessions Judge/MCTC Ubauro whereby he was convicted under Section 302(b) PPC and sentenced to suffer imprisonment for life as Tazir; besides to pay compensation Rs.100,000/- to the legal heirs of the deceased and in default thereof, he shall suffer S.I for six months more. However benefit of Section 382-B Cr.P.C was extended to him.

2. The brief facts as per FIR are as under:-

“Complaint is that Akhtiar Ahmed s/o Miandad by caste Shaikh aged about 24/25 years is my nephew whose money Rs.20,000/- was due towards Liaqat s/o Muhammad Bux Shaikh on that he was angry. Yesterday evening I, cousin Rasheed s/o Raza Muhammad and nephew Yaseen s/o Miandad Shaikh went to the house of Akhtiar Ahmed Shaikh for some work. We all stayed night in his house after taking dinner we slept. The electric bulbs were glowing, on 02.02.2013 at 04:00 A.M. in the night, the noise occurred, I, cousin Rasheed and nephews Yaseen and Akhtiar Ahmed awoke and saw on the lights of bulbs each one Liaquat s/o Muhammad Bux by case Shaikh r/o Mustafa Abad Colony Daharki having cudgel, 2. Nawab s/o Boto by caste Shaikh r/o Mustafabad Colony Daharki with pistol, 3. Ramzan, 4. Manzoor both sons of Muhammad Bux by caste Shaikh r/o Ronti, Taluka Ubauro having pistols and three other persons having pistols whose faces were opened and they were not acquainted to us earlier, standing in the courtyard of the house. After that the accused Liaquat Ali Shaikh while abusing my nephew Akhtiar Ali said that you insulted me on the issue of money. Today, we kill you while saying so the accused Liaquat Ali Shaikh with intention to murder inflicted blows with wooden cudgel to my nephew Akhtiar Ahmed who while crying fell down on the ground, the persons having pistols said us not to come near, due to fear of weapons we remained quiet. After that all accused alongwith pistols and cudgel went out of the house then we saw that my nephew Akhtiar Ahmed has received blows on head and over the eyebrow of left eye, blood was oozing and he died within our sight. I shifted dead body of the deceased Akhtiar Ahmed with the help of above witnesses to hospital at Daharki, got letter from police got conducted postmortem and dead body was brought to Ubauro. Now I have appeared and report that aforementioned accused persons on account of above hostility, duly armed, making affray, entered and trespassed into the house of my nephew Akhtiar Ahmed accused Liaquat Ali by causing blows of wooden cudgels to my nephew Akhtiar Ahmed has committed his murder while I and my witnesses shall identify the accused persons, if seen again. I am complainant justice may be made.

3. After registration of FIR, police conducted investigation, arrested accused and on completion of investigation submitted challan against them before the Court having jurisdiction.

4. After completing all the legal formalities, the trial court initiated trial by supplying copies to the accused as required under Section 265-C Cr.P.C. The charge was framed against the accused to which he pleaded not guilty and claimed trial.

5. The prosecution in support of its case examined PW-1 PC Abdul Sami, who got conducted postmortem of the deceased and handed over the dead body to his LRs at Ex-8, PW-2 the Complainant Ajmal Shaikh examined at Ex-9, he produced the FIR at Ex-9/A, PW-3 ASI Muhammad Khalid Arain, the Investigation Officer examined at Ex-10, he produced memo of inspecting the dead body as Ex-10/A, Danishtnama as Ex-10/B, memo of inspecting the place of incident as Ex-10/C, memo of securing the lost worn clothes as Ex-10/D, memo of arrest of accused Liaquat as Ex-10/E and memo of wooden Sairoon (used in alleged offence) as Ex-10/F, PW-4 Dr. Kailash Kumar, who conducted postmortem of the deceased examined as Ex-11, he produced police letter as Ex-11/A and postmortem report as Ex-11/B, PW-5 Abdul Rasheed, being eye witness examined as Ex-13, PW-6 Munawar Alam, the mushir in the case examined as Ex-14, PW-7 Tapedar Muhammad Haneef, who prepared sketch of place of incident was examined as Ex-15. He produced the sketch at Ex-15/A, PW-8 Ghulam Yaseen, being another eye witness examined as Ex-16. Thereafter learned ADPP for the state closed side of prosecution at Ex-18.

6. Statement of accused was recorded under Section 342 Cr.P.C at Ex-19, in which he has denied the allegations of the prosecution and claimed his innocence. However, neither he led evidence in his defence nor examined himself on oath under Section 340(2) Cr.P.C. After recording evidence and hearing the parties, learned trial Court convicted the accused as stated above, hence the instant appeal.

7. At the very outset, learned Counsel for the Appellant has contended that the Appellant is innocent and has falsely been implicated by the Complainant party due to matrimonial dispute as the present appellant contracted marriage with niece of Complainant against his wishes; that there is un-plausible and unexplained delay of about 06 hours in registration of FIR, resulting due deliberation and consultation; that admittedly the incident was occurred at night time, which was un-witnessed; however eye witnesses as mentioned are chance witnesses as they are not residing at the place of incident; that no incriminating was recovered article from the possession of the appellant/accused; however the same was recovered from the roof of the bathroom of the deceased, which was allegedly, as per prosecution, recovered on the pointation of accused; that incriminating weapon used in the commission of the offence, as per prosecution case, was ‘sairoon’; however incriminating weapon produced in Court was a iron hook, which was usually fixed in the ‘chowkath’ of the door; that there were material contradictions in the evidence of prosecution witnesses hence case of the prosecution cannot be freed from shadow of reasonable doubt; that learned trial Court has brushed aside the material contradictions in the evidence and has not examined the same with scale whether the Complainant and PWs, who are not resident of Daharki, where the alleged incident took place; learned trial Court has completely failed to appreciate the evidence put before it; that impugned judgment is clear example of misreading and non-reading of evidence; that a single dent in prosecution case, which seems to be necessary, goes in favour of accused. In support of his contention, learned Counsel placed reliance upon the case law reported as Farooque Ahmed and others vs. Sobharo and others (2020 P Cr. L J Note 130), Altaf Hussain vs. The State (2019 SCMR 274), PLD 2019 SC 527, Taj Muhammad and 2 others vs. The State (2020 P Cr. L J 1693), Tariq Pervez vs. The State (1995 SCMR 1345) & Shafique Shah and another vs. The State (2010 P Cr. L J 1156).

8. Learned Deputy Prosecutor General has mainly contended that it has already been surfaced on the record that FIR as well as 161 statements were recorded on the same day of incident, therefore contention with regard to delay of six hours in lodgment of FIR carries no weight as it has been explained comparatively; that incriminating weapon has also been recovered on the next day of incident; that the ocular testimony fully supports medical evidence; that blood stained earth was recovered from the place of incident and denial in this regard has not been made; that witnesses fully supported the version of complainant as well as recovery; that it is settled law that it is not necessary regarding quantity of witnesses; however there should be quality of evidence. In the last, he submits that learned trial Court has rightly convicted the appellant/accused, therefore, prayed for dismissal of appeal. He placed reliance upon the case law cited as Akhtar vs. The State (2020 SCMR 2020), Muhammad Shakeel vs. The State (2006 SCMR 1791), The State/ANF vs. Muhammad Arshad (2017 SCMR 283), Farooq Khan vs. The State (2008 SCMR 917), Abdul Khalique vs. The State (2020 SCMR 178), Abdul Khaliq vs. The State (2021 SCMR 325), Abdul Aziz alias Abdullah vs. The State (SBLR 2020 Sindh 122) and Muhammad Bilal vs. Jan Muhammad and another (SBLR 2021 Sindh 960).

9. I have heard learned Counsel for the Appellant as well as learned Deputy Prosecutor General and have carefully examined the material available on record with their able assistance.

10. On reassessment of the entire evidence produced by the prosecution, I am of the view that the prosecution has proved the case against the appellant beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence in shape of ocular evidence, medical evidence and recovery of the crime weapon used and other supportive evidence which also includes documentary evidence.

11. 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 02-02-2013 at about 0400 hours in the house of deceased Akhtiar Ahmed Shaikh situated in Deh Daharki, deceased received injury 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. Kailash Kumar, who conducted postmortem of deceased Akhtiar Ahmed Shaikh and found the following injuries:

1. Lacerated wound 3 cm x 2 cm muscle deep over just above left eye brow. 

2. Lacerated wound 3 cm x 1 cm over mid of parietal region producing bleeding from both nostrils, both ears and from mouth.

As per the opinion of the doctor the injuries 1 and 2 were sufficient for causing of death due to brain damage. All the injuries were anti-mortem and caused by hard and blunt substance.

12. The prosecution in order to prove ocular account as furnished by the MLO, discussed above, has examined Ajmal PW-No:2, (Complainant) who deposed that Deceased Akhtiar was his nephew (Bhanja). Accused Liaqat owed Rs.20000/- to his deceased nephew Akhtiar and he used to demand his money from accused Liaqat. Accused Liaqat was angry with the deceased on demand of his money. On 01.02.2013 he alongwith Rasheed, and Ghulam Yasin went to the house of deceased and went to sleep after taking dinner. At about 0400 hours in the night on 02.02.2013 there was noise in front of the house of the deceased. The light bulb was on, they saw accused Liaqat, Manzoor Ahmed, Mohammad Ramzan, and Nawab Ali and three unidentified accused. Accused Liaqat was armed with danda. All other accused were armed with pistols. Accused Liaqat Ali caused Danda blow on head of deceased, Co-accused also stated that as the deceased had insulated him by demanding money therefore they will kill him. As result of Danda blow, his nephew Akhtiar died on the spot. All other accused persons on the show of weapons threatened them not to come forward otherwise they will kill them. After the accused persons went away, they picked up the dead body of deceased and brought it to the Hospital for postmortem. Police officer came at the Hospital and issued letter for postmortem. Postmortem was conducted at Taluka Hospital Daharki. After postmortem they brought the dead body for burial. On 02.02.2013, he alongwith PWs Yasin and Rasheed went to the police station and lodged FIR. On the same day they took the police to the place of incident. Police officer picked up blood stained earth from the place of incident in presence of mashirs. This witness was cross-examined by the defence counsel and during the cross-examination accused took defence that deceased Akhtiar fallen down from motorcycle and received the head injury and died. Such defence too confirms the case of prosecution that the deceased was died due to hard and blunt injuries. During the cross-examination on one question this witness stated that “Accused threw sarion on the roof of the bathroom after causing injury to the deceased.” As regards to the identity in the night time, the accused and the deceased were near relatives and were residing in the same room as has been admitted by the complainant during the cross-examination by stating that “It is correct that accused Liaqat and deceased were Sandoo inter-se. It is incorrect that accused Liaqat and deceased used to reside in one and same house.”

13. In support of the version of complainant prosecution examined another eye-witness namely Abdul Rasheed as PW-4 who deposed that deceased Akhtiar aged about 24/25 years was his nephew. Accused Liaqat had to pay Rs.20000/- of deceased. When deceased demanded his money accused got angry. He, Ajmal, Ghulam Yasin had gone to the house of deceased in the evening of 1.2.2013. After taking night meal they went to sleep. During night at about 0400 hours there was some noise of which they got up. They saw accused Liaqat having Sairon of cot in his hand, accused Manzoor armed with pistol, accused Ramzan armed with pistol, and Nawab also armed with pistol standing in the house of deceased. There were also three accused persons with pistols, but they were not identified by them. Accused Liaqat stated the deceased Akhtiar as to why he insults him by demanding money from him. He immediately caused blow of Sairon on head above the left eye of deceased. Deceased failed down and started bleeding. Other accused straightened their pistols on them and threatened that if they tried to intervene, they will kill them. They checked the deceased who was bleeding and died on the spot. They took him to the police station from where they obtained letter and took the dead body to the Hospital. Postmortem of the deceased was conducted and after postmortem they took the dead body to their house. After the dead body was buried complainant went to police station and lodged FIR. This witness was also cross-examined by the defence counsel at length but I could not find anything favourable to the appellant. The defence was put to this witness that he was dealing with the business of sale purchase of womenfolk and wants to sell the wife of appellant and on refusal he is deposing against him, which carries no weight in absence of any defence evidence.

14. The prosecution examined third eye witness of the incident namely Ghulam Yasin as PW-8 who deposed that accused Liaqat was owing Rs.20,000/- towards Akhtiar. He used to demand money from him, but accused was angry on such demand. On 01.02.2013 he along with complainant Ajmal and Rasheed went to visit Akhtiar. After taking meal they went to sleep. At about 0400 hours there was some noise and they got up. They saw in the light of bulbs that seven accused persons were present in the courtyard of the house of Akhtiar. He identified accused Liaqat having "saroon" in his hand, Ramzan armed with pistol, Manzoor armed with pistol, Nawab armed with pistol and three unidentified accused persons also armed with pistols were there. Accused Liaqat asked Akhtiar as to why he demands money from him. Accused Liaqat caused blow of "Saroon" on the head of Akhtiar. They tried to save Akhtar but other accused persons stated that if they will take a step forward they will kill them. They stood back due to fear until the accused persons went away from the house. They saw Akhtiar who was bleeding from his head and died on the spot. They brought the dead body to the police station Daharki, obtained letter and got the postmortem of dead body conducted. After burial of dead body they went to lodge FIR which was lodged by his brother Ajmal. This witness was cross-examined but nothing favourable to appellant is pointed out by the defence counsel.

15. The prosecution examined mashir Munwar Ali as PW-6 who deposed that on 02.02.2013 at about 0455 hours he along with co-accused Siddique had come at the Taluka Hospital Daharki along with dead body of Akhtiar Ali Shaikh. Police officer came and checked the dead body. He prepared mashirnama of seeing the injuries and obtained his signature and LTI of co-mashir Saddique on the same mashirnama. Police officer also prepared Danistnama on the same day in his presence and in presence of co-mashir Siddique. On the same day police officer visited the place of incident which is the house of deceased Akhtiar. There was blood lying on the bed as well as on the ground. Police officer collected blood stained earth from the place of incident and sealed the same in his presence and in presence of co-mashir Muhammad Siddique. On 02.2.2013 at about 1300 hours police official brought last worn clothes of deceased at the police station which were sealed in his presence and in presence of co-mashir Muhammad Siddique. On 05-02-2013 he and co-mashir Muhammad Siddique were present on Daharan Wara More, where police officer came and arrested accused Liaqat and upon his search nothing was recovered from his possession. Police officer prepared memo of arrest and search of accused Liaqat. Thereafter on 06.02.2013 he and co-mashir were available on the place of incident where police officer brought accused Liaqat who led the police in the house and took out Sairon which was lying on the roof of bathroom and police sealed the same. This witness was cross-examined and during cross-examination it was suggested that the murder of deceased Liaqat was committed by this witness and the complainant, however this suggestion was not put to any other witness. It was also suggested that crime weapon was given by the complainant to the police to foist the same against the appellant but during cross-examination of the investigating officer it was suggested that crime weapon was foisted by the investigating officer himself.

16. Besides the above three eye-witnesses and the mashir, the prosecution examined Muhammad Khalid PW-3 (Investigation Officer) who deposed that on 02.02.2013 he was posted as ASI at PS Daharki and was duty officer. He received information that a dead body has been brought at Taluka Hospital Daharki. He reached there along with his staff WPC Mazhar and PC Abdul Sami Kori. He saw dead body lying on the stretcher in the Hospital. The dead body was identified by complainant. Head of the dead body was towards North and feet towards South. He examined the dead body and there was one injury on left eye which was bleeding. He appointed mashirs Munwar Ali and Mohammad Saddique and prepared Mashirnama of seeing of dead body so also prepared Danistnama. He deposed that he gave letter to complainant Muhammad Ajmal for postmortem and handed over dead body to PC Abdul Sami for postmortem. On the same day complainant Ajmal came at the police station at about 10:00 hours, narrated the story of incident showing cognizable offence to which he lodged FIR. After lodging FIR he alongwith complainant went to the place of incident and secured blood stained earth from the place of incident in presence of Munwar Ali and Mohammad Saddique. He prepared such Mashirnama. At about 1300 hours on the same day PC Abdul Sami brought the last worn clothes of deceased which he secured vide Mashirnama prepared in presence of same mashirs. He further deposed that on the same day he recorded statements u/s 161 Cr.P.C of witnesses Ghulam Yasin and Rasheed. He arrested Liaqat on 05.02.2013 from Dahar More in presence of Munwar Ali and Mohammad Saddique and prepared Mashirnama of arrest. During interrogation accused Liaqat admitted his guilt and stated that he killed the deceased by causing him injuries with wooden piece of cot (sairon) and volunteered to produce the same. On 06.02.2013 appellant led them to Mustafa Abad Colony (place of incident) and took out said wooden piece from the roof of Bathroom of the house of deceased which he sealed as instrument of murder on spot vide Mashirnama of recovery in presence of same mashirs. After completing investigation he submitted challan before court. This witness was also cross-examined and only defence was taken that he himself foisted the recovery of crime weapon but no enmity or ill-will was suggested against him as to why he foisted the crime weapon against him. In absence of enmity or any ill-will against this witness his evidence cannot be discarded.

17. The prosecution also examined Tapedar Muhammad Haneef who exhibited the sketch of the place of wardat and the PC Abdul Sami the corpse bearer both had also supported the case of prosecution as per there averments.

18. In the case in hand there are three eye-witness who fully supported the case of prosecution and no major contradiction has been found in their evidence. The recovery of crime weapon was affected on the pointation of appellant from the house of deceased and the appellant was also residing in the same house as has been disclosed by the witnesses during their cross-examination. The identification of appellant in night time is too not questionable as the appellant was residing with the deceased and was nearest relative to the deceased and the witnesses who have good look on the appellant at the time of incident has deposed against the appellant. The contentions of learned advocate for the appellant that the witnesses are near relatives to the deceased and are interested therefore their evidence cannot be relied upon, has no force as in the instant matter, the eye-witnesses have sufficiently explained the date, time and place of occurrence as well as each and every event of the occurrence and are also nearest relatives of the appellant having no enmity with the appellant. The suggestion made to witnesses in respect of enmity in absence of proof have no value in the law.

19. It was the only appellant who had a motive for committing murder of the deceased and the only appellant caused fatal injury to the deceased resulting death. Only the appellant knows about the crime weapon used in the commission of offence as to where he concealed it and appellant after his arrest pointed the place where it was hidden and produced the same weapon before the investigation officer in presence of private mashirs and no enmity has been even suggested against the investigating officer for foisting the same against the appellant.

20. No major contradiction in the evidence is pointed out by the defence counsel for allowing benefit of the doubt to the appellant. It is settled law that where in the evidence prosecution established its case beyond reasonable doubt then if there may some minor contradictions which always are available in each and every case as no one can give evidence like photograph such may be ignored, Reliance is placed on the case of Zakir Khan V. The State (1995 SCMR 1793), wherein Honourable Supreme Court has held 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.”

21. Thus based on the discussion made hereinabove and on the reassessment of entire evidence produced by the prosecution, 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, 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 of the appellant.

JUDGE