IN THE
HIGH COURT OF SINDH,BENCH AT SUKKUR
Criminal Jail Appeal
No. S-58 of 2010
Appellant: Saeed Ahmed Ghangro, through
Mr.
Bakhshan Khan Mahar,
Advocate.
Complainant: Sher
Muhammad in person
The State: Through Mr.Shafi Muhammad Mahar,
Deputy Prosecutor
General
Date of hearing: 13.12.2021.
Date of judgment: 04-03-2022.
J U D G M E N T
ZULFIQAR ALI SANGI, J:- Through
this appeal, appellant Saeed Ahmed son of Naseer
Ahmed has challenged the Judgment dated 15.03.2010, passed by learned
Additional Sessions Judge, (Hudood) Sukkur, in Sessions Case No.284/2005 re-“The State v. Saeed Ahmed”, arising
out of Crime No.31/2005, registered at Police Station Bagerji,
under Section 302/34 PPC, whereby he was convicted for the offence u/s
302(b)/34 PPC and sentenced to imprisonment for life, however benefit of
section 382-B, Cr.P.C was extended to him.
2. Briefly the facts of the
prosecution case are that complainant Sher Muhammad
lodged FIR on 16.10.2005 alleging therein that on 15.10.2005 accused Saeed
Ahmed and Ghulam Sarwar took him and his sons Abdul Waheed and Abdul Aziz to Bagerji forest for purchasing buffalo and making them
seated under a hovel went saying that they are taking the buffalo. After a
while they came back having Kalashnikovs along with two unknown persons armed
with guns. Accused Ghulam Sarwar asked the complainant party to remain mum and
unknown persons pointed their weapons at them wile accused Saeed Ahmed took
complainant’s son Abdul Waheed a few ahead and accused Ghulam Sarwar saying
that he had insulted him fired upon Abdul Waheed with his Kalashnikov which hit
him and he died. Thereafter complainant with the help of his son Azizullah
brought the dead body of Abdul Waheed at Government Hospital Bagerji and leaving there Azizullah over the dead body, the
complainant went to Police Station and lodged such FIR.
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/appellant to which he pleaded not guilty and claimed trial.
4. The prosecution in order to
prove its’ case has examined P.W-1 M.O Dr. Mushtaque Ahmed
at Ex.05, who produced postmortem report at Exh.5-A and letter of police at
Ex.5-B, PW-2 complainant Sher Muhammad at Ex.6, who
produced copy of FIR at Ex.6-A and receipt of receiving dead body at Ex.6-B,
PW-3 mashir Rafique Ahmed
at Ex.7, who produced Danishnama at
Ex.7-A, mashirnama of securing blood stained clothes
of deceased at Ex.7-B, mashirnama of inspecting the dead body at Ex.7-C,
mashirnama of inspection of the place of vardat and recovery of blood stained
earth at Ex.7-D, PW-4 Azzizullah at Ex.8, PW-5/I.O
ASI Muhammad Hashim at Ex.9, who produced two roznamcha entries at Ex.9-A
& 9-B, PW-6 ASI Muhammad Ayoub, at Ex.10,
who produced mashirnama of arrest of accused Saeed Ahmed at Exh.10-A and roznamcha
entry at Ex.10-B, PW-7 Tapedar Manzoor Ahmed at Ex.11, who produced sketch of
vardat at Ex.11-A. Thereafter learned DDPP for the state closed the side of prosecution
vide his statement at Ex.12.
5. Statements of accused/appellant u/s 342 Cr.P.C was recorded
at Exh.13,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 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
appellant has contended that the prosecution has failed to prove its case
beyond reasonable doubt; that the ocular evidence is inconsistent with the
medical as well as circumstantial evidence; that neither any empty was
recovered from the place of vardat nor the crime weapon has been recovered;
that there is no report of chemical examiner regarding blood stained earth or blood
stained clothes of the deceased; that there are major contradictions in the
evidence of prosecution witnesses; that the PWs and mashirs are close relatives
of the complainant; that the impugned Judgment is against the law, facts,
principles of natural justice and equity; that learned trial court has erred in
convicting the appellant by not taking into consideration the entire material,
thus the impugned Judgment is liable to be set-aside; he finally prayed that the
appeal may be allowed and the appellant be acquitted by extending benefit of
doubt to him.
7. Learned D.P.G. appearing for the
state has 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.
8. I have heard learned counsel for
the parties and have gone through the material available on record with their
able assistance.
9. The prosecution in order to
prove the death of deceased Abdul Waheed as unnatural has examined PW-1 Dr. Mushtaque Ahmed who deposed that on 16.10.2005, he was posted
as Medical Officer at Government Hospital Bagerji. On
the same day at about 1.00 am PC Abdul Hakeem Mahar
of P.S Bagerji brought dead body of Abdul Waheed son of Sher Muhammad Kumbhar for post mortem examination and report. He started
postmortem examination at about 1.30 am and completed the same at 3.00 am. On
external examination of the dead body he found the following injuries on the
person of deceased Abdul Waheed.
1. A punctured type of wound measuring 1.0
x 1.0 cm on the back side of chest in its middle just side of chest in its
middle just side of vertebral column at 9th vertebrae. No blacking,
burning or tattooing seen.
2. A punctured type of wound on interior
side of chest on its left side measuring 2.5 x 2.5 cm just 5 cm below the
clavicle.
The Doctor further deposed that
on internal examination of the dead body of deceased Abdul Waheed he found
free blood seen in the thorax cavity, right
lung congested but left lung damaged, superior and inferior venacave
damaged, greater Aorta damaged and upper border of heard damaged. Pericardium
damaged. All other organs of the body were normal and healthy.
From external as well as
internal examination of the dead body of deceased Abdul Waheed, he was of the
opinion that the death of deceased has occurred due to injuries on vital organ
of the body which were caused by fire arm. This witness was not cross-examined
by the defence counsel and his evidence went unchallenged, hence the
prosecution has proved its case in respect of the unnatural death of deceased
Abdul Waheed.
10. After the prosecution has proved
death of the deceased Abdul Waheed as unnatural then the question before this
court is that who committed the murder of deceased to which prosecution examined
PW-2 Sher Muhammad who deposed that Abdul Waheed was
his son. Saeed Ahmed s/o Naseer Ahmed, Ghulam Sarwar s/o Ali Hassan Ghanghro
are residing near his house in village Shah Ladhani,
they came at his house and called them, they informed them that they should
accompany them for purchasing a buffalo as they wanted to purchase a buffalo,
he alongwith his son Abdul Waheed and Abdul Aziz accompanied the accused
persons on 15.10.2005. The accused persons led them towards forest area and
they sit there under a Chapra and after some time accused
persons went informing them that they are going to bring a buffalo but after
some time both the accused armed with K.K returned back alongwith two more
accused persons but had not brought the buffalo. They informed them that they
have cheated them bringing here in the forest area, as they wanted to kill his
son Abdul Waheed. The unknown persons stand guard upon them whereas accused
Saeed caught hold his son Abdul Wahed and accused Sarwar caused fire arm injuries to his son Abdul Waheed and
Saeed Ahmed also robbed Rs.25,000/- from Abdul Waheed. Thereafter all the
accused persons ran away. He deposed that they found that his son was expired
away due to fire arm injuries. They brought the dead body on a donkey cart to P.S
Bagerji on 16.10.2005 where he lodged the report at
P.S Bagerji. This witness was cross-examined by the
defence counsel and during cross-examination suggestion was made that the
deceased was murdered during the encounter in between the Nareja
and Jatoi community, said suggestion was denied by
this witness and the appellant had not produced any record of such encounter to
prove his defence.
11. The prosecution in order to prove
its case also examined another eye-witness as PW-4 Azizullah who deposed that
Complainant is his father. Abdul Waheed was his brother. Accused Saeed and Ghulam Sarwar Ghanghro
are residing near their house in village Shah Ladhani,
they came at their house and called them, they informed them that they should
accompany with them for purchasing a buffalo as they wanted to purchase a
buffalo, they accompanied the accused persons on 15.10.2005. The accused
persons led them towards forest area and they sit there under a Chapra and after some time accused persons went informing
them that they are going to bring a buffalo but after some time both the
accused armed with K.K returned back alongwith two more accused persons but had
not brought the buffalo. They informed them that they have cheated them
bringing here in the forest area, as they wanted to kill his brother Abdul
Waheed. The unknown persons stand guard upon them whereas accused Saeed caught
hold his brother Abdul Waheed and accused Sarwar caused fire arm injuries to
his brother Abdul Waheed and Saeed Ahmed also robbed Rs.25000/- from Abdul
Waheed. Thereafter all the accused persons ran away. They found that his
brother was expired away due to fire arm injuries. Then they brought the dead
body on a donkey cart to P.S Bagerji. This witness
was cross-examined by the defence counsel and during cross-examination
suggestion was made that the deceased was murdered during the encounter in
between the Nareja and Jatoi
community, said suggestion was denied by this witness and the appellant had not
produced any record of such encounter to prove his defence. This witness also
admitted that there was no enmity in between them and the accused.
12. After the prosecution examined
eye-witnesses of the case has examined mashir namely Rafique Ahmed as PW-3 who deposed that the complainant is
his father, whereas Abdul Waheed was his brother. On 16.10.2005 Police prepared
Danishtnama of the dead body of his brother Abdul
Waheed in his presence and in presence of co-mashir Inayat Hussain. Police also
secured blood stained clothes of his brother Abdul Waheed and prepared such
mashirnama. The clothes were secured on 16.10.2005. Police also inspected the
dead body of his brother Abdul Waheed and prepared such mashirnama. Police also
visited the place of wardat on 16.10.2005 at about 7.30 time
in his presence and in presence of co-mashir Inayat Hussain and prepared such
mashirnama. This witness was also cross-examined. I have gone through the same but
could find anything which favours the appellant.
13. The prosecution then examined PW-6
Muhammad Ayub who arrested the appellant on
23-10-2005 at 1800 hours from Teer Chowk, Sukkur in presence of mashirs PC Muhammad Qasim and
PC Abdul Subhan and prepared such mashirnama. During
cross-examination his arrest from the place which has been shown by the
prosecution was denied and it was suggested that appellant was arrested from Shikarpur
which this witness denied. The prosecution also examined the Tapedar of the
beat namely Manzoor Ahmed as PW-7 to prove the place of incident and he also
formally cross-examined.
14, The
prosecution examined Investigation officer of the case namely Muhammad Hashim
as PW-5 who deposed that on 16.10.2005 he was I/C Investigation P.S Bagerji. On the same date he received FIR copy Crime
No.31-05 for investigation. He went to the place of wardat
and prepared Danishnama of deceased Abdul Waheed. He
secured the clothes of the deceased under mashirnama. On 16.10.2005 he
inspected the dead body of deceased Abdul Waheed in presence of same mashirs
and prepared mashirnama. On 16.10.2005 he visited the place of wardat in
presence of mashirs and prepared such mashirnama. He also secured blood stained
mud from the place of wardat and recorded statements under section 161 Cr.P.C
of the witnesses. I have carefully perused the cross-examination but found
nothing favourable to the appellant.
15. The evidence produced by the prosecution was reassessed and on
reassessment of the entire evidence including the medical evidence the
important part of which discussed above and after hearing learned advocate for
the appellant, complainant who was present in person and the DPG, I find that
the prosecution has proved its case against the appellant for the offences
charged beyond any shadow of reasonable doubt by producing reliable,
trustworthy and confidence inspiring evidence.
16. The contention of learned counsel
for the appellant that the allegation against the appellant is only that he had
caught hold the deceased and then co-accused Ghulam Sarwar had caused firearm
injuries therefore the appellant cannot be convicted for the offence of murder
of deceased Abdul Waheed, has no force as appellant actively participated in
the incident, he along with other co-accused took the complainant party with
the pretext that they are selling the buffalo and when they brought the
complainant party at the place where they could easily commit the murder, they
committed the same. During the cross-examination not a single suggestion was
made to the prosecution witnesses that he was not accompanied with the
co-accused Ghulam Sarwar nor it was suggested that he was falsely involved due
to some grudge with complainant party. The
applicant had directly participated in the occurrence as evident from the
depositions of the witnesses, even otherwise his case also falls within the
ambit of section 34 PPC which
provides that when a criminal act is done by
several persons, in furtherance of the common intention of all, each of such
persons is liable for that act in the same manner as if it were done by him
alone.
17. Contentions
raised by the learned counsel for the appellant that the witnesses are relatives
of deceased and are interested, therefore, their evidence cannot be relied upon
has also no force as although the witnesses are relatives of the deceased but
they specifically deposed against the appellant. During cross-examination it
was also brought on record that the appellant is also residing near to the
house of complainant party and the same has not been denied by the appellant.
The presence of complainant and the eyewitness at the place of wardat is also
established from their evidence. There is no dent in the prosecution evidence
which suggests that the appellant was falsely involved in the commission of
offence. 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."
18. In the case
of Zulfiqar Ahmed & another V. State(2011SCMR
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.
19. The
contention of the advocate for the appellant that empties were not recovered
from the place of wardat which may connect the appellant with the commission of
this offence has too no force as no weapon was recovered from the appellant
because appellant Ghulam Sarwar remained absconder therefore there was no
chance that said empties ought to be sent for FSL for matching with the weapon.
In the present case the occurrence has taken place in the broad
daylight and there is no chance of any misidentification. All these factors
when evaluated conjointly it is abundantly clear that the prosecution has
succeeded to establish the case without any reasonable doubt. The Honourable
Supreme Court in case of Muhammad Afzal v. The State (2020 SCMR 597) has also not allowed
the appeal of convict on the basis of non-recovery of crime weapon and in
absence of report of Forensic Science Agency by holding that the benefit of the
same has already been extended to the accused and sentence of death was
converted into imprisonment for life being alternative sentence.
20. Learned counsel for the appellant
pointed out some minor contradictions and discrepancies in the evidence 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 against the accused beyond a reasonable doubt then if there may some minor
contradictions which always are available in each and every case the same 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.”
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 the sentence, for the offence in the judgment dated 15.03.2010, passed
by learned Additional Sessions Judge (Hudood) Sukkur, in Session Case No. 284 of 2005 arising out of FIR No. 31 of 2005
registered at police station Bagerji for offences
under section 302 and 34 PPC, whilst dismissing the appeal of the appellant
Saeed Ahmed.
JUDGE