IN THE
HIGH COURT OF SINDH,BENCH AT SUKKUR
Criminal
Jail Appeal No. S-15 of 2013
Appellants: Muhammad
Younis and another, through Mr. Rukhsar
Ahmed Junejo, Advocate.
Complainant: Muhammad
Ishaque, through
Mr.
Muhammad Ali Dayo, Advocate.
The State: Through
M/s Talib Hussain Siyal
Assistant Prosecutor General & Aftab
Ahmed Shar/Additional Prosecutor
General.
Date of hearing: 09.08.2021,
23.08.2021 & 25.10.2021
Date of decision: 03.12.2021.
J U D G M E N T
ZULFIQAR ALI SANGI, J:- Through
this appeal, appellants Muhammad Younis and Khalid
Hussain both sons of Abdul Malik Brohi, have challenged
the Judgment dated 27.02.2013, passed by learned Additional Sessions Judge, Naushahro Feroze, in Sessions
Case No.195/2008re-“The State v. Muhammad
Younis and others”, arising out of Crime No.131/2008,
registered at police station Padidan, under Section 302,
324, 337-A(i), 337-A(ii), 337-A(iii),
337-F(i), 337-L(ii) 504, 147 and 148 PPC, whereby both the appellants were
convicted and sentenced as under:
i.
for offence u/s 302 (b) r/w section 34 PPC, life imprisonment with
compensation of Rs.50,000/- to be paid by each accused to legal heirs of
deceased Ali Bux and in default S.I for six months
more,
ii.
for offence u/s 324 PPC,
imprisonment for 5 years and fine of Rs.25,000/- to be paid by each accused to
victims/injured Faiz Rehman,
Amir Bux and Moula Bux and in default S.I for three months more,
iii.
for offence u/s 337-A(i)
PPC Daman of Rs.10,000/- to be paid by each accused to each injured Faiz Rehman, Amir Bux and Moula Bux
and imprisonment for one year R.I,
iv.
for offence u/s 337-F(i)
PPC, Daman of Rs.10,000/- to be paid by each accused to each injured Faiz Rehman, Amir Bux and Moula Bux
and imprisonment for one year R.I,
v.
for offence u/s 337-A (iii)
PPC, Arsh of Rs.25,000/- to be paid by each accused
to each injured Faiz Rehman,
Amir Bux and Moula Bux and imprisonment for five years R.I,
vi.
for offence u/s 337-L (ii)
PPC, imprisonment for one year R.I,
vii.
for offence u/s 504 PPC,
imprisonment for one year R.I,
All the sentences of
imprisonments were ordered to be run
concurrently and benefit of section 382-B, Cr.P.C was also extended to the
accused, however they shall remain in custody till the Daman and Arsh amount is paid to the injured Faiz
Rehman, Moula Bux and Amir Bux.
2. Concisely the facts of the
prosecution case are that complainant Muhammad Ishaque
owned agricultural land and had got sanctioned Government road towards their
lands. Few days prior to the incident, the complainant party was putting mud in
the way for road, where their relative accused Muhammad Ayoub
came and asked them that he will not allow them to construct road and harsh
words have been exchanged between them, thereafter he by issuing threats went
away. On 10.06.2008, in the morning time, complainant Muhammad Ishaque,
his brothers Ali Bux and Faiz
Rehman were working in their lands, when at about
10.00 a.m accused Yousif
with rifle, Muhammad Ayoub with hatchet, Muhammad Younis with hatchet, Khalid Hussain with iron rod and two
unidentified persons with pistol and lathi came
there. Accused Muhammad Ayoub by saying that since
they were not desisting from constructing the road, therefore, they would not
be spared, caused hatchet blow to Ali Bux on his
head, who raising cries fell down and then remaining accused caused hatchet, lathi, kicks and firsts blows to him. On their cries, PWs Moula Bux and Ameer
Bux came there and accused Muhammad Younis caused hatchet blow to Moula
Bux on his head while rest of the accused caused
hatchet and lathi blows to Ameer
Bux. On their cries Co-villagers also attracted at
the place of vardat, who rescued them and then
accused went away towards their houses by abusing the complainant party.
Complainant party then noticed that Ali Bux had
received injuries on his head, over left eye and other parts of the body and
blood was oozing. Injured were brought at police station Padidan
and then at RHC Padidan, wherefrom injured Ali Bux and Moula Bux
were referred to PMCH Nawabshah. Thereafter the
complainant leaving the injured in hospital came at Police Station Padidan and lodged such FIR. On 12.06.2008 injured Ali Bux succumbed to injuries and died.
3. After registration of FIR,
police conducted investigation, arrested accused and on completion of
investigation submitted challan against them before
the court having jurisdiction. After completing all the legal
formalities the charge was framed against the accused/appellants to which they
pleaded not guilty and claimed trial.
4. The prosecution in order to
prove the case examined P.W-1 Complainant Muhammad Ishaque
at Ex.14, who produced FIR already on record at Ex.4/A, PW-2 injured Moula Bux at Exh.15, PW-3 injured
Faiz Rehman at Exh.16, PW-4
injured Amir Bux at Exh.17, PW-5 mashir
Aziz Rehman at Exh.18, who produced mashirnama of inspection of injuries, mashirnama
of place of vardat, inquest report, recovery of
clothes of deceased, Danistnama, mashirnama
of arrest of accused, and mashirnama of recovery of crime weapons at Exh.18-A to 18/G,
PW-6 Tapedar Muhammad Yousif
at Ex.19, who produced sketch of vardat at Exh.19-A,
PW-7 SIP Muhammad Mithal Dahar
the author of FIR at Exh.20, PW-8 M.O Dr. Arbab Ali Channa at Exh.21 who produced lash chakas
form and post mortem report of deceased Ali Bux at
Exh.21-A and 21-B, PW-9 Medical officer Dr. Muhammad Aslam
Arain at Exh.22 who produced police letter and
medical certificates of injured at Exh.22-A to 22-F, PW-10 ASI Gul Hassan at
Exh.23, PW-11 I.O Inspector Aijaz Ahmed Rajper at Exh.24, who produced mashirnama
of place of vardat, inspection of dead body, recovery
of clothes of deceased, arrest of accused, recovery of crime weapons and
chemical report at Exh.24-A to Exh.24-F. Thereafter, learned ADPP for the state
closed the side of prosecution at Exh.25.
5. Statements of accused/appellants were recorded under
section 342 Cr.P.C at Exh.26 to 28, in which they have denied the allegations
of the prosecution and claimed their innocence. However, neither they led
evidence in their defence nor examined themselves on oath u/s 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.
6. Learned counsel for the
appellants has contended that the prosecution has failed to prove its case
beyond reasonable doubt; that there is one day delay in registration of FIR, 16
days delay in recording statements of injured Moula Bux and 9 days delay in recording statements of other
witnesses u/s 161 Cr.P.C while delay of two days in making memo of place of
incident; that the appellants were arrested on 16.6.2008 while recovery of
crime weapon was effected on their pointation after 10 days on 26.06.2008; that the blood
stained earth was collected from the place of incident on 12.06.2008 but sent
the same for chemical analysis on
30.06.2008 after 18 days while the blood stained clothes were not sent for
chemical examination; that there are major contradictions in the evidence of
prosecution witnesses; that the co-accused Muhammad Yousif
was acquitted by the trial court on same set of evidence, however appellants
were convicted, which is against the principle of falsus in uno, falsus in
omnibus; that the PWs and mashirs are close
relatives of the deceased; that the impugned Judgment is against the law, facts,
principles of natural justice and equity; that learned trial court has erred in
convicting the appellants by not taking into consideration the entire material
and thus the impugned Judgment is liable to be set-aside; he finally prayed that
by extending benefit of doubt, the appellants may be acquitted. Learned counsel
for the appellants in support of his contentions placed his reliance on the
cases of Farooque Ahmed
and others v. Sobharo and others (2020 P.Cr.L.J Note 130), Muhammad Asif
v. The State (2017 SCMR 486) and Altaf Hussain v.The State (2019 SCMR 274).
7. Learned counsel for the
complainant has contended that the prosecution has proved its case against the
appellants beyond any reasonable shadow of doubt by producing oral as well as
medical evidence; that no major contradiction is pointed out by the defence
counsel; that the delay in lodging of FIR has been explained and active roles have been assigned to the
appellants as such false implication of appellants cannot be claimed; that so far the non-association of witnesses from the locality is
concerned, it has been observed by the Apex courts in number of cases that it
is matter of common knowledge that the people from the locality generally
hesitate to come forward as witness in such cases for fear of reappraisal from
the accused party; that the offence in which the
appellants are involved is heinous one; that the learned trial court has
rightly convicted the appellants and they do not deserve any leniency. Lastly
he prayed that the appeal of the appellants may be dismissed. In support of his contentions leaned counsel for the complainant placed
his reliance on the cases of Sadam Hussain @
Kobra and others v. The State and
others (2021 MLD 1763), Fateh Muhammad and others v. The
State and others (2021 P.Cr.L.J 969), Fazal Akbar and another v. The
State through A.A.G and another (2013P.Cr.L.J 369) and Akhtar v. The State (2014 P.Cr.L.J 993).
8. Learned A.P.G. appearing for the
state has supported the arguments advanced by learned counsel for the complainant
so also supported the impugned judgment and further contended that there
appears no illegality or irregularity in the impugned judgment which is well
reasoned and does not require any interference of this court. He placed
reliance on case law reported as Mohibullah and
another v. The State (2020 P.Cr.L.J
1039) and Farman
Ali and another v. The State and another (2020 SCMR
597).
9. I have heard learned counsel for
the parties and have gone through the material available on record including
law cited at the bar with their able assistance.
10. On reassessment of entire material
available on record and after hearing the parties, I am of the view that the
prosecution has prove its case against the appellants beyond a reasonable doubt
by producing oral as well as medical evidence including the recoveries. The
evidence produced by the prosecution is reliable, trustworthy and confidence
inspiring and the same is discussed as below.
Oral/ ocular evidence.
11. The prosecution has examined
complainant namely Muhammad Ishaque as PW-1 (Eye-witness)
who deposed that he is complainant of the case. Deceased Ali Bux was his brother. He had got sanctioned a mattled road from Government from link road towards their
village. Few days prior to this incident, he and his brother were filling earth
for the road. Meanwhile their relative Muhammad Ayoub
came there, who exchanged harsh words with them. Muhammad Ayoub
further disclosed that he will not allow them to complete the road. On
10.06.2008 he, his brothers Ali Bux and Faiz Rehman were working in their
land. At about 10.00 a.m accused Muhammad Yousif with rifle, Muhammad Ayoub
and Muhammad Younis with hatchets, Khalid with iron
rod and two unidentified persons armed with pistol and lathi
came there. Accused Muhammad Ayoub challenged them
and said that since they are not going to stop the construction of road,
therefore, he will not spare them. On saying so, accused Muhammad Ayoub caused hatchet blow on the head of his brother Ali Bux, who cried and fell down. Accused Khalid caused iron
blow over left eye of his brother Ali Bux. Co-accused
maltreated them. He deposed that they raised cries which attracted Moula Bux and Amir Bux who also came at place of incident. Accused Muhammad Younis caused hatchet blow to Moula
Bux on his head. Co-accused caused iron rod blows and
lathi blows to Amir Bux. On
cries villagers also attracted at place of incident who gave the name of Holy
Quran to accused and rescued them. Thereafter accused
went away with their respective weapons towards their houses. He with the help
of villagers shifted injured Ali Bux, Moula Bux, Faiz
Rehman and Amir Bux at P.S Padidan and after getting letter for medical treatment, he
again brought them at R.H.C Padidan. From Padidan hospital his brother injured Ali Bux and his cousin Moula Bux were referred to Nawab shah
hospital as they were in serious condition. He brought both injured at Nawab shah hospital, leaving them there, on next day of the
incident; he came at PS Padidan, where he lodged the
FIR of incident against accused. He deposed that he shown place of incident to
Investigating Officer of this case. I.O collected blood stained earth from
place of vardat under mashirnama
and sealed the same. On 12.6.2008 his brother injured Ali Bux
succumbed to his injuries at night hours in Hospital at Nawab
shah. Postmortem of dead body of his deceased brother was conducted at Nawab shah hospital and thereafter they brought the same at
their village at Naushahro Feroze.
On 13.6.2008 I.O of this case came at their village and inspected the dead
body. They handed over the clothes of deceased to I.O. This witness was
cross-examined but nothing favourable to appellants
has been pointed out by the defence counsel.
12. The prosecution also examined Moula Bux as PW-2 (Injured/ Eye-witness)
who deposed that Complainant and deceased are his cousins. On 10.06.2008 he and
Amir Bux were present outside of their houses. At
about 10.00 a.m they heard cries from the lands of
complainant Muhammad Ishaque. Thereafter, they both
rushed there, when they reached in the lands of Muhammad Ishaque,
they saw that accused were quarrelling with Muhammad Ishaque
and his brothers. They identified accused to be Yousif
with rifle, Ayoub with hatchet, Younis
with hatchet, Khalid with iron rod and there were two unidentified persons
having pistol and lathi in their hands. Accused Ayoub caused hatchet blow on the head of Ali Bux, who fell down. Accused Khalid caused iron rod blow
over the left eye of Ali Bux. He tried to intervene,
whereupon, accused Muhammad Younis caused hatchet
blow on his head. Accused Khalid caused him iron rod blow on his abdomen. All
accused gave beatings to complainant Muhammad Ishaque
and others. Meanwhile villagers attracted at place of incident. Thereafter accused
went away while abusing them. Complainant shifted them at PS Padidan, wherefrom he obtained letter for their medical
treatment and brought them at Padidan Hospital. He
and injured Ali Bux were referred from Padidan Hospital to Nawab Shah
Hospital because of serious condition. Leaving them in Nawab
shah hospital, Muhammad Ishaque came at Padidan PS where he lodged FIR of the incident. On
12.6.2008 injured Ali Bux succumbed to his injuries
and passed away in Nawab shah hospital at about 11.00
p.m. On 26.6.2008 his statement was recorded at P.S. This witness fully
corroborates with the version given by the complainant and was cross-examined
but defence counsel has not shattered his evidence.
13. The prosecution examined another
injured witness namely Faiz Rehman
as PW-3 (Injured Eye-witness)
who deposed that Complainant is his brother. Deceased was also his brother. On
10.6.2008, he, his brothers Muhammad Ishaque and Ali Bux were working in their lands. At about 10.00 a.m, accused Ayoub, Younis with hatchets, Khalid with iron road, Yousif with rifle and 2 unidentified persons with pistol
and lathi came there, with their common object. Accused
Yousif controlled upon them. Accused Ayoub caused hatchet blow on the head of his brother Ali Bux who cried and fell down on earth. Accused Khalid caused
iron rod blow over the left eye of his brother Ali Bux.
Co-accused caused him and his brother Muhammad Ishaque
kicks and fists blows. On cries, PWs Amir Bux and Moula Bux attracted at place of vardat. Accused Younis caused
hatchet blow on the head of Moula Bux
whereas accused Khalid caused iron rod blow on abdomen of Moula
Bux. Amir Bux came forward
to intervene, whereupon, accused Younis caused
hatchet blow on the hand of PW Amir Bux. Thereafter
Amir Bux seated. Accused Khalid caused iron rod blow
to Amir Bux on his head and elbow of arm. Accused
Khalid also caused him iron rod blow on his head. On their cries villagers
appeared at place of vardat who gave names of
Almighty Allah to accused, whereupon, accused went away towards their houses.
They noticed that his brother Ali Bux was bleeding
from his head and his eye was swelling. They further noticed that Amir Bux and Moula Bux
had also received injuries. His brother Muhammad Ishaque
with the help of villagers arranged for the transport and shifted them from
place of incident to P.S Padidan. After getting
letter for medical treatment from PS Padidan, they
were brought at Padidan hospital. Ali Bux and Moula Bux
were referred by Padidan Hospital to Nawab shah hospital because of their serious condition. He
and Amir Bux were admitted in Padidan
Hospital for medical treatment. On third day of incident, he came to know that
his brother Ali Bux has succumbed to his injuries.
They came at their village to see his last face. Police had recorded his
statement. He fully supported the case of prosecution and no major
contradiction seen in his cross-examination.
14. The prosecution examined eye-witness Amir
Bux PW-4 (Injured Eye-witness)
who deposed that Complainant is his relative. Deceased Ali Bux
was also his relative. Complainant Ishaque had got
sanctioned a mattled road, which had annoyed accused Yousif. Few days prior to incident there had exchange of
harsh words in between complainant and accused Yousif.
On 10.6.2008 he and Moula Bux
were present outside of their houses. At about
Medical evidence.
15. The prosecution in order to prove
the death of deceased as un-natural and to prove the injuries received by the
injured in the case in hand has produced medical evidence in support of the
ocular evidence and examined Dr. Arbab
Ali as PW-8 who deposed that on13.6.2008; he
was posted as Sr. Medical Officer at PMCH, Nawabshah.
On same day dead body of deceased Ali Bux Brohi was brought before him by ASI Ghulam
Hassan Bhangwar of A-Section PS Nawabshah.
It was about 3.30 a.m of 13.6.2008 when dead body was
produced before him by ASI Gul Hassan and he produced before him Lash Chakas Form of dead body of deceased Ali Bux. He deposed that he started postmortem examination at
3.30 a.m and finished the same at 4.40 a.m.
On external examination, he noted following injuries on the person of deceased
Ali Bux:-
1. Stitches wound 14 c.m from
left frontal region up to left ear.
2. Stitches wound about 7 cm from mid parietal up to right parietal region.
3. Surgical stitches wound near left umbilical region of abdomen about 6 cm.
Internally he found following injury on the body of the deceased.
One deep dissection left front temporal
bone is fractured. According to the Ward record, craniotomy was done for
removal of sub arachnoid hemorrhage (Head injury).
Internally in thorax he did not find any disease/lesion in the body of
deceased.
The
doctor further deposed that on external as well internal examination of dead
body of deceased, he was of the opinion that death of the deceased Ali Bux occurred due to above mentioned head injuries. The
cause of death pulmonary cardiac arrest and consequence of above mentioned head
injury. All the injuries were ante-mortem in nature on the body of deceased.
16. The prosecution also examined Dr.
Muhammad Aslam as PW-9
who deposed that on 10.6.2008 he was posted as Medical Officer at R.H.C, Padidan. On the same day at 11.30 a.m
four injured namely Moula Bux,
Amir Bux, Faiz Rehman and Ali Bux appeared
before him for their medical treatment through letter of police of PS Padidan. He examined all the four injured as under:-
1.
Injured Faiz
Rehman. He
received following injuries:
1. Lacerated wound 5 cm x ˝ x skin deep on right parietal temporal region of
head. (bone not exposed).
2.
This
injury was declared by him as Shujja-e-khafifah. He had received injury through hard and blunt
substance.
2.
Injured Ali Bux. He received following
injuries.
1.
Lacerated
wound 9 cm x ˝ cm x 1 cm up to bone on mid of right plus left parietal region
of head (kept reserved for radiological expert opinion).
2. Contusion with swelling 7 cm x 4 cm x on left eye with redness of left
eye (kept reserved for expert opinion).
He received injuries with hard and blunt substance. He was referred to P.M.C.H,
Nawabshah, where he died after 3 days.
3.
Injured Amir Bux. He received following injuries:-
1.
Incised
wound 2 cm x1/4thc.mx skin deep on palm of right hand.
2. Lacerated wound 3 cm x ˝ cm x skin deep on left paritone-occipital
region of head (bone not exposed).
3. Contusion with swelling 5 cm x 4 cm on left elbow joint (posteriorly).
The injury No.1 was declared by him as jurh-e-GhayrJaifah Damiyah, injury No.2
as Shujja-e-Khafifah and
injury No.3 as other hurts (337-L(2) PPC). Injured
Amir Bux had received injury No.1 with sharp cutting
weapon, whereas injuries No.2 and 3 with hard and blunt substance.
4.
Injured Moula
Bux. He received following injuries:-
1.
Lacerated
wound 5 cm x half cm x up bone on mid of frontal region of head (kept reserved
for radiological expert opinion).
2. Contusion with swelling 10 cm x 2 cm x on lower part of left chest (kept
reserved for radiological expert opinion).
After
receiving expert opinion from Radiological Expert, he declared the injury No.1
of injured Moula Bux as Shujja-e-Hashimiyah and injury
No.2 as other hurts (337-L(2) PPC). Injured Moula Bux had received injuries
through hard and blunt substance.
Circumstantial
evidence as well as Recoveries:
17. In order to prove the
circumstantial evidence which includes recoveries, the prosecution examined Azizur-Rehman as PW-5 (Mashir), who deposed that on
10.6.2008 ASI Muhammad Mithal noted the injuries of
injured Ali Bux, Amir Bux, Faiz Rehman and Moula Bux at PS Padidan. ASI Muhammad Mithal
prepared such mashirnama in his presence. He further
deposed that on 12.6.2008 SIP Aijaz Ahmed Rajper visited the place of incident in his presence and in
presence of co-mashir, which was shown to them by
complainant Muhammad Ishaque. A dry blood was lying
at place of incident. Complainant disclosed that said blood was of his deceased
brother Ali Bux. SIP Aijaz
took blood stained earth from place of vardat and
sealed the same into a plastic box. SIP Aijaz
prepared such mashirnama and obtained their
signatures over it. He deposed that on 13.6.2008 complainant Muhammad Ishaque shown dead body of deceased Ali Bux
to SIP Aijaz Ahmed Rajper
which was lying in deceased’s house. SIP Aijaz Ahmed
prepared mashirnama of dead body of deceased Muhammad
Ishaque in his presence and in presence of co-mashir Ghulam Rasool
and obtained their signatures over it. The dead body of deceased Ali Bux was wrapped into white colored coffin. On same day
viz.13.6.2008 complainant produced clothes of deceased to SIP Aijaz Rajper at 7.40 a.m said SIP prepared mashirnama
of clothes of deceased on spot and obtained their signatures over it. SIP Aijaz also prepared danistnama of
dead body of deceased in his presence on 13.6.2008. On 16.6.2008 SIP Aijaz Ahmed arrested accused Muhammad Younis
and Khalid Hussain near their houses in his presence and in presence of co-mashir Ghulam Rasool
at about 7.00 p.m. SIP Aijaz Ahmed prepared such mashirnama in their presence. On 26.6.2008 at about 10.00 a.m accused Muhammad Younis
produced a hatchet to SIP Aijaz Ahmed from the hedges
of his house. He disclosed to SIP Aijaz that it is same
hatchet through which he had committed murder of deceased Ali Bux. At the same time, accused Khalid Hussain produced an
iron rod to SIP Aijaz Ahmed from the hedges towards
backside of house of accused in his presence. SIP Aijaz
Ahmed prepared such mashirnama of recovery on spot in
his presence and in presence of co-mashir Ghulam Rasool.
18. Prosecution also examined Muhammad
Yousif PW-6 Tapedar
who visited the place of vardat and papered such
sketch which he also exhibited in his evidence. ASI
Muhammad Mithal PW-7
was also examined by the prosecution who deposed that on 10.6.2008, he was
posted as ASI/Duty officer at PS Padiden. On same day
at 11.25 a.m four injured in a taxi appeared before
him at PS Padidan. He saw injuries of all the four
injured and prepared mashirnama of their injuries. He
referred injured to hospital for their treatment. On 11.6.2008 complainant
Muhammad Ishaque appeared before him and disclosed
regarding cognizable offence. Complainant Muhammad Ishaque
further disclosed to him that inured Ali Bux has been
expired due to his injuries. He lodged FIR of the complainant Muhammad Ishaque vide crime No.131/2008 of PS Padidan for offence
u/s 302, 337-A(i), 337-A(ii), 337-F(i), 147, 148, 504 PPC. Thereafter he handed
over FIR to investigation team of PS Padidan.
19. The prosecution examined ASI Gul
Hassan as PW-10 who deposed that on 13.6.2008 he
was posted as ASI at P.S A-Section Nawabshah. On same
day SHO P.S A-Section directed him to visit P.M.C.H Hospital Nawabshah where dead body of the deceased Ali Bux was lying. SHO directed him to prepare last Chakas Form of deceased Ali Bux
and get its postmortem examination from M.L.C. At about 3.00 a.m of same day he came at P.M.C.H Nawabshah.
A dead body of deceased Ali Bux was lying in dead
house. He prepared its Lash Chakas Form. He handed
over the dead body of deceased Ali Bux to Medical
officer for its Postmortem Examination. After postmortem of dead body the same
was given to him by Medical Officer, which he handed over to its legal heirs.
20. The prosecution examined
important witness which is the investigating officer SIO Aijaz Ahmed as PW-11
who deposed that on 11.06.2008 he was posted as SIO Padidan.
On same day, he received FIR No.131/2008 of PS Padidan,
u/s 302 PPC, mashirnama of injuries and roznamcha entries from ASI Muhammad Mithal
Dahar for investigation purpose. On 12.06.2008, he
visited the place of vardat on the showing of
complainant Muhammad Ishaque. He prepared mashirnama of place of vardat in
presence of mashirs Aziz-ur-Rehman and Ghulam Rasool. On 13.6.2008 he saw dead body of deceased Ali Bux, lying in the house of complainant Muhammad Ishaque. The autopsy
of dead body of deceased Ali Bux was already conducted
through police of PS Nawabshah. He prepared mashirnama of dead body of deceased Ali Bux
in presence of same mashirs Aziz-ur-Rehman and Ghulam Rasool. Thereafter he handed over dead body of deceased Ali
Bux to its legal heirs for its burial, accordingly.
Complainant Muhammad Ishaque handed over him the
clothes of deceased Ali Bux on spot,
he prepared such mashirnama in presence of same mashirs Aziz-ur-Rehman and Ghulam Rasool. On 16.6.2008, he arrested accused Muhammad Younis and Khalid Hussain near their houses under mashirnama in presence of same mashirs
Ghulam Rasool and Aziz-ur-Rehman. On 19.6.2008 he
recorded statements of PWs Faiz-ur-Rehman and Amir Bux u/s 161 Cr.P.C. On 26.6.2008, during interrogation,
both arrested accused Muhammad Younis and Khalid
Hussain confessed their guilt and volunteered to produce crime weapons, used by
them in murder of deceased Ali Bux. Both accused led
him towards their houses. Accused produced crime weapons from the hedges
surrounded to their house. Accused Muhammad Younis
produced hatchet before him. Accused Khalid Hussain produced iron rod with
pointed tip (Sumbo). He prepared mashirnama
of recovery of articles viz. hatchet and Sumbo in
presence of same mashirs Ghulam
Rasool and Aziz-ur-Rehman. He sent blood stained earth taken by him from place
of vardat for chemical analysis. During
investigation, he received report of Chemical Examiner Laboratory Rohri, which he produced at Ex.24/F. He wrote a letter to Mukhtiarkar Revenue Naushahro Feroze for getting prepared sketch of vardat
through Tapedar concerned. After completing legal
formalities he submitted charge sheet of this case before the court of learned
1st Judicial Magistrate/Civil Judge, Naushahro
Feroze.
21. The prosecution examined
complainant who was the eye witness of incident and the three
other injured eye witnesses who
fully supported the case of complainant and received
injuries from the hands of the appellants and identified them at the spot. Presence
of these injured witnesses has not been challenged during cross-examination. The
incident was of day time incident. These all the witnesses were cross-examined
by defence counsel at length but I do not find any material contradiction which
suggests that the case is one of doubtful. The evidence of the injured eye
witnesses corroborates with the medical evidence including the postmortem of
the deceased Ali Bux and further corroborates with
the recovery of hatchet and the iron rod used by the appellants on their pointation from the place which too belongs to the
appellants. Honourable Supreme Court in case of Abdul
Rauf and others v. Mehdi Hassan and others (2006 SCMR
1106), held as under:-
"Presence of eye-witnesses who had received firearm
injuries at the place of occurrence at the relevant time was not open to any
doubt. None of the eye-witnesses was shown to have any motive or ill-will to
maliciously implicate the accused in the case".
22. Contention
of learned counsel that there is delay of one day in registration of FIR,
therefore the case is doubtful and its benefit must goes to the appellants has
no force as the present incident took place on 10-06-2008 at about 10 am and
the FIR was registered on 11-06-2008 under section 324, 337-A(1), A(2), F(1),
147, 148, 149 and 504 PPC and s. 302 was added in the case after death of the
deceased Ali Bux and at the time of FIR deceased Ali Bux was injured and was admitted in hospital in serious
condition including the other three injured persons who were also admitted in
hospital inspite of that the FIR was registered and the
delay was explained by the complainant and the prosecution witness by deposing
that they first took the deceased and other injured in injured condition to the
Padidan Hospital and thereafter the deceased was referred to the PMCH Nawabshah
for better treatment, who thereafter
died in the hospital. The Doctor also deposed that injured was brought in Padidan Hospital in serious condition and he was referred
to PMCH Nawabshah but he expired. Complainant party
at the first instant was busy in saving the life of the deceased who was in
serious condition and was referred by the doctor and leaving him in hospital
complainant went to police station and lodged the FIR. I find that the delay,
if any, in registration of the FIR was properly explained by the complainant.
In this circumstance the delay, if any, occurred in the registration of FIR is
not fatal to the case of prosecution in the particular fact and circumstance of
the present case. Like similar facts and the circumstances in the case of Abdul Khalique Versus The State (2020 S C M R 178), Honourable Supreme Court of Pakistan has held as under:-
3. After
hearing the learned counsel for the petitioner and learned Additional
Prosecutor General at length and perusal of available record with their
assistance, it has been observed by us that though there is delay of about
sixteen hours in lodging the FIR but the fact remains that it has come on
record that complainant side had sent Muhammad Umer,
cousin of deceased Khalil Ahmed, whose name was also given in the FIR, to P.S. Bulri Shah Karim for issuance of
letter for medical treatment of injured Khalil Ahmad (deceased) from the
hospital and in this respect a Rapat was recorded by
the police at 11.30 p.m. on the day of occurrence and a letter was also issued
with the signatures of ASI to the Medical Officer, District Hospital, Tando Muhammad Khan for conducting medical examination of
Khalil Ahmad (deceased) and for issuance of medico-legal certificate. Dr. Nizamuddin (PW6) who medically examined Khalil Ahmad in
injured condition stated in his examination in chief that Khalil Ahmad was
brought by his relatives on 18.07.2014, who informed him that their relative
had gone to police station for obtaining the letter, whereupon he (PW6) started
examination of Khalil Ahmad. He further stated that in the meantime the said
relative brought the letter of police. The said letter has been exhibited as
Ex.16/A. The doctor (PW6) further stated in his cross-examination that he
referred Khalil Ahmad to LUMHS Hyderabad after giving him first aid at 11.05
p.m. on 18.07.2014. In this respect, referral letter has been exhibited as
Exh.16/B. A glance at the postmortem examination report of Khalil Ahmad issued
by Dr. Salahuddin (PW7), MLO at LUH Hyderabad reveals
that Khalil Ahmad was admitted in the said hospital on 19.07.2014 and he
expired there on 21.07.2014. In these circumstances, the delay in lodging
the FIR has reasonably been explained by the prosecution. Even otherwise, the
first priority of kith and kin of Khalil Ahmad (deceased) was to save his life
and they tried to do so by first taking him to local hospital, wherefrom he was
referred to a hospital at Hyderabad. Even in this process, they reported the
matter to police and obtained official letter of police for medical examination
of Khalil Ahmad (deceased).
23. Contentions raised by the learned counsel
for the appellants that the witnesses are near relatives to the deceased and
are interested therefore their evidence cannot be relied upon has also 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. The witnesses also received injuries during the occurrence. Both the
parties are known to each other as is evident from their evidence and this is a
day time incident, so there was no chance of mistaken identity of the appellants.
No
substance has been brought on record by the appellants to justify their false
implication in this case at the hands of the complainant party on account of any
previous enmity. In the case of Zulfiqar Ahmed & another v. State (2011
SCMR 492), Honourable Supreme
Court has held as under:-
“It is well settled by now
that merely on the ground of inter se
relationship the statement of a witness cannot be brushed aside. The concept of
‘interested witness’ was discussed elaborately in case titled Iqbal alias Bala v. The State
(1994 SCMR-01) and it was held that
‘friendship or relationship with the deceased will not be sufficient to
discredit a witness particularly when there is no motive to falsely involve the
accused.
In another
case of Muhammad Waris v. The State (2008 SCMR 784), Honourable
Supreme Court has held as under:-
Eye-witness had explained their presence at
the place of occurrence at the relevant time and thus, they were natural and
independent witnesses of the incident. Medical evidence was not destructive of
the ocular testimony".
24. The contention of learned counsel for the
appellants that the statements of injured witnesses under section 161 Cr.P.C were
recorded with delay and the prosecution failed to explain such delay which is
fatal to the prosecution has also no force as admittedly the injured witnesses
were hospitalized and the Investigating Officer, visited the hospital, but did
not record statement of injured witnesses under section 161, Cr.P.C. for the
reasons best known to him. It is by now settled that intentionally or otherwise
any concession extended to the accused by the Investigating Agency shall not
term fatal its own case. The belated recording statement of witnesses under
section 161, Cr.P.C. is no ground to brush aside the statement of injured/
ocular witnesses. Reliance is placed on the case of Qaisar
Hussain alias Kashi alias Kashif
v. The State (2011 PCr.L.J 1126), wherein it
was held:
"12.
Learned defence counsel during arguments pointed out the statement of P.W.8 Mukhtiar son of Rehman Khan one
of the eye-witnesses in whose presence the abductees were forced by the accused
including the present appellant to accompany them and he
during cross-examination stated "I made statement before the police after
about fix days, of the occurrence." Learned
defence counsel has tried to draw an inference rather to get benefit in favour
of the appellant that as it was a delayed statement recorded by the police
under section 161, Cr.P.C., therefore, it has no
value. No doubt in normal course after registration of an FIR statement of a
witness who has been shown as such in the initial report with the police if his
statement is recorded with delay, an adverse inference is to be drawn and this
statement to some extent becomes valueless but if the facts and circumstances
of the present case are seen it is clear from the record as narrated above that
occurrence took place on 12-9-1999 and FIR was got recorded by P.W.6 Muhammad
Iqbal complainant on 18-9-1999 by explaining the delay of six days that due to
fear of the accused/appellant as they threatened for dire consequences in case
it was disclosed to the police and on the same day i.e. 18-9-1999 the statement
of P.W.8 Mukhtar was also recorded by the police,
therefore, this objection is without any substance. It is further to be
clarified here that recording of statement of the P.W. with delay is not itself
sufficient to discard its value, the circumstances make it so. If the statement
is delayed due to certain ulterior motives like filling up certain lacunas in
the prosecution version then it has become valueless and if circumstances
justified then every statement recorded with delay is not to be discarded."
25. The another contention
of learned advocate for the appellants that co-accused Muhammad Yousif was acquitted by the trial court on the same set of
evidence therefore the principal of falsus in uno falsus 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 appellants
being armed with rifle which he had not used. The evidence produced by the
prosecution established the case against the appellants Muhammad Younis and Khalid Hussain. 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 Ahmed 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 uno falsus 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.
26. Appellants were arrested on 16-06-2008 after five days
of the incident and on 26-06-2012 during the interrogation produced the iron
rod and the hatchet used by them in the commission of offence. Investigating
officer took them along with other police staff to the place where they
concealed the crime weapons and only the appellants were in knowledge about the
same place where they concealed the weapons of crime which was situated outside
the house of appellants. The mashir of the recovery
fully supported the recovery and during cross-examination his evidence was not
shattered by the defence.
27. It
is a well-settled principle of law that a criminal case is to be decided based
on the totality of impressions gathered from the circumstances of the case and
not on the narrow ground of cross-examination or otherwise of a witness on a
particular fact stated by him. A similar view had been expressed by the Honourable Supreme Court of Pakistan in the case of State
v. Rab Nawaz and another (PLD 1974 SC 87) wherein
Honourable Supreme Court has observed that a criminal
case is to be decided based on the totality of circumstances and not based on a
single element.
28. During
arguments learned counsel for the appellants 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.”
29.
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
appellants by producing reliable, trustworthy, and confidence-inspiring oral
evidence as well as medical evidence, recovery of crime weapons used while
committing the offence 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