IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Cr. Appeal No. S-51 of 2013
Appellants: Mujahid Ali Dawach S/O Bangul and Nazeer S/O Wazeer Dawach,
Through M/s Ahmed Bux Abro and Dildar Ali Chandio, advocates
Complainant: Adam Ali Dawach (called absent)
The State: Through Mr. Muhammad Noonari,
Deputy Prosecutor General.
Date of hearing: 29-03-2021.
Date of Decision: 23-04-2021.
J U D G M E N T
Zulfiqar Ali Sangi, J. Through instant criminal appeal, the appellants Mujahid Ali and Nazeer have assailed the Judgment dated 23.08.2013, passed by the learned II-Additional Sessions Judge, Larkana in Sessions Case No.461/2011, re: State V/S Mujahid and another, being outcome of Crime No.20/2011 of P.S. Rasheed Waggan, U/S 302,34 P.P.C, whereby the trial court has convicted the appellants U/S 302(b) P.P.C and sentenced them to imprisonment for life as Tazir and also directed to pay Rs.200,000/- each as compensation under Section 544-A, Cr.P.C, to the legal heirs of deceased Muhammad Ali, which shall be recoverable as land revenue arrears, in case of default of payment or recovery, accused shall undergo imprisonment for 6 months more. However, the appellants/accused were given benefit of Section 382-B Cr.P.C.
2. Brief facts of the prosecution case are that the complainant Adam Ali Dawach lodged the F.I.R atPolice Station RasheedWaganstating therein thatabout 3/4 days ago present appellant/accused Mujahid Ali had leveled the allegation of Karo against Shahzado, the nephew of complainant with his wife. On 05.06.2011, the complainant, his brothers Mohammad Ali, Ghulam Nabi, nephew Irshad Ali had gone to their lands near their village. After finishing their work, they were coming from their lands. At about 9.00 pm, when they reached near the lands of Ahsan Ali Samtio, they saw two persons coming, on the light of torch they identified them to be Mujahid Ali and Nazeer having guns in their hands. Accused Mujahid Ali (present appellant No:1)while raising hakal made straight fire upon deceased Mohammad Ali on the pretext that his son Shahzado is Karo with his wife. Accused Nazeer (present appellant No: 2)also made straight fire upon deceased Mohammad Ali and then he fell down on earth. The complainant party did not go close due to fear of weapons. The complainant party raised cries on which the villagers came while raising hakals on shots of fire and cries of the complainant party. Thereafter the accused ran away. The complainant party saw deceased Mohammad Ali, who had received firearm injury on his right side ear which crossed his head and another firearm injury was received below the right side ear which crossed back of his head so also blood was oozing and he had died. The complainant party with the help of above P.Ws shifted deceased Mohammad Ali at CMC hospital Larkana and thereafter appeared at Police Station and lodged instant FIR.
3. After completing formalities, on 25.06.2011, I.O submitted the final reportU/S 173 Cr.P.C by showing accused Mujahid as arrested while accused Nazeer was shown as absconder. On 17.07.2011, accused Nazeer was also arrested and on 18.07.2011, the S.I.O submitted his subsequent report before the concerned court.
4. The case papers were supplied to both appellants. Formal charge was also framed against them, to which they pleaded not guilty and claimed to be tried.
5. The prosecution in order to prove its case, examined the MLO Dr. Ashok Kumar PW-1at Ex.6, who produced postmortem report at EX.6/A;Tapedar Qazi Ghulam Farooq PW-2 was examined at Ex.7, he produced sketch of place of vardat at Ex.7/A, Mashir PC Himat Ali PW-3 was examined at Ex.8, he produced Mashirnama of arrest of accused Mujahid Ali at Ex.8/A and PS copy of entry No.9 at Ex.8/B; Complainant Adam PW-4 was examined at EX.9, he produced FIR at Ex.9/A; Eye witness Irshad Ali PW-5 was examined at Ex.10; Eye witness Ghulam Nabi PW-6was examined at Ex.11; Mashir Budhal Khan PW-7was examined at Ex.12, he produced Mashirnama of examination of dead bodyat EX.12/A and Mashirnama of place of vardat and securing blood stained soil as well as empty cartridges at Ex. 12/B;P.W-8/corps bearer LNC Ashique Hussain was examined at Ex.13, he produced receipt of delivery of dead body at Ex.13/A; I.O Sanaullah PW-9 was examined at Ex. 14, he produced Lash chakas form and Danistnama at Ex.14/A and 14/B, letter to Mukhtiarkar for preparing sketch at Ex.14/C, report of chemical examiner at EX. 14/D and Ballisticreport at Ex.14/E; SIP Sartaj Ahmed PW-10 was examined at Ex.15, he produced entries No.12 and 13 at Ex.15/A. Thereafter side of prosecution case was closed vide statement of learned D.D.P.P. for the State at Ex. 16.
6. Trial Court recorded statements of accused under section 342 Cr.P.C, wherein they denied the prosecution allegations, claimed theirinnocence and prayed for justice. However, neither they opted to be examined themselves on oath nor lead any evidence in their defence.
7. After assessment of evidence, learned trial court has passed the above impugned judgment and awarded sentence to the present appellants/accused as mentioned above. Being aggrieved by and dissatisfied with the said judgment appellants/accused above named have preferred this criminal appeal.
8. Learned counsel for the appellants have contended that the appellantsareinnocent and have falsely been implicated in this case; that there is no any convincing evidence against accused; that the prosecution has failed to establish its case against accused;that dead body was handed over to doctor with delay of 4 hours; that it was not stated by the P.Ws that gun was single or double barrel; that the torch which was source of identification was also not produced before I.O. In support of their case, learned counsel for the appellants have cited the case laws reported as Mst. Mir Zalaiverus Ghazi Khan and others(2020 SCMR 319),Shabbir Ahmed and others versus the State and others(2020 P.Cr.L.J 45), Ziaullah versus The State and others(2018 P.Cr.L.J 1104), Talib Hussain versus The State(SBLR 2018 Sindh 983), Baz Muhammad versus The State and others(2018 MLD 603), Abdul Sattar versus The State(2018 YLR Note 15)(Sindh), Khalil versus The State(2017 SCMR 960),ZahirYousaf and another versus The State and another(2017 SCMR 2002) andMoinuddin and another versus The State (2017 MLD 2097)[Sindh]. They have prayed for acquittal of the appellants.
9. LearnedDeputyProsecutor General has submitted that prosecution witnesses have fully supported the case; that motive has not been denied by defence witnesses; that the medical evidence as well as ocular account have supported the prosecution case; that direct role of firing has been assigned against both the appellants/accused; that the crime weapons and empties have also been recovered; that ballistic report and chemical examiner's reports are positive; that there are minor contradictions arisen due to lapse of time, however on material points prosecution evidence remained un-shattered;that there is sufficient material available to connect the present accused with the commission of offence. He has prayed that the appeal of the appellants may be dismissed.
10. I have heard learned counsel for the appellants and learned D.P.G. and have gone through the material available on the record with their able assistance.
11. On reassessment of the entire evidence it established that the prosecution has proved the case against the appellants beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence.
12. The evidence of three eye witnesses which includes the complainant is found trustworthy, they supported each other on each aspect of the case. The complainant Adam who was an eye witness of the incident was examined as PW-4 who deposed that on 05-06-2011, he along with Irshad, Muhammad Ali and Ghulam Nabi were returning from their lands and when they reached at the land of Ahsan Samtio they saw and identified on the torch light two persons each Mujahid and Nazeer were armed with guns. He deposed that accused Mujahid gave hakal to his brother Muhammad Ali and said that his son Shahzado has illicit relations with his wife Rukhsana and is Karo by saying so he made straight fire upon Muhammad Ali which hit him and the accused Nazeer also made straight fire upon Muhammad Ali the same was also hit him, his brother fell down after receiving fire arm injuries at the right ear across the head and at beneath the right ear. They raised crises, on the fire shots and the crises co-villagers came, on seeing coming to them accused escaped their good. Thereafter they took the dead body towards Chandka hospital on Mazda and leaving the witnesses at hospital he went to police station where he lodged the FIR. He further deposed that police proceeded to Chandka hospital where post mortem was conducted and after formalities they took dead body to their village.He deposed that he pointed out the place of incident to the police on the same day where from police recovered two empty cartridges. This witness was cross examined by the defence counsel and it was found that some formal questions were made no material contradiction come in his evidence.
13. After the complainant prosecution examined another eye witness of the incident namely Irshad Ali who deposed that 0n 05-06-2011 he along with his uncle Adam, Muhammad Ali and Ghulam Nabi went to their lands and were returning at 09 pm, when they reached at the land of Ahsan Samtio they saw accused Mujahid and Nazir armed with guns. Accused Mujahid gave hakal to Muhammad Ali and said his son Shahzado is karo with his wife and they will kill him by saying so accused Mujahid fired from his gun upon Muhammad Ali which hit him and accused Nazir also fired from his gun upon Muhammad Ali which also hit him to which Muhammad Ali fallen down. They raised crises, on the crises and fire shorts co-villager came their on seeing them coming accused escaped their good. They saw Muhammad Ali and found that he received injuries on his right ear and another injury on beneath the right ear crossing through neck, blood was oozing and he was expired.This witness was also cross-examined but nothing favorable to appellants come on record. No false implication was suggested nor was the motive denied.
14. The third eye witness of the incident Ghulam Nabi PW-6 was examined by the prosecution who while supporting the version given by the above two eye witnesses deposed that this incident took place on 05-06-2011 he along with complainant Adam pw Irshad Ali and the deceased Muhammad Ali were returning from their land reached at the land of Ahsan Samtio and was accused Mujahid and Nazir armed with guns to which accused Mujahid gave hakal to the Muhammad Ali and said that his son Shahzado is karo with his wife, therefore, he will not spare him and by saying so Mujahid fired from his gun upon Muhammad Ali which hit him and accused Nazir also fired from his gun which too hit Muhammad Ali who after receiving injuries fell down and blood was oozing from the injuries. They raised crises which attracted the co-villagers who came there and accused while seeing them coming escaped their good.He further deposed that Muhammad Ali received one injury at right ear and another injury on right side of ear at neck. Dead body was brought by them to hospital for postmortem and after the FIR his statement under section 161 was recorded by the investigation officer. This witness was also cross examined and defence counsel was not able to point out any major contradiction in his evidence.
15. Mashir of the case Budhal was examined as PW-7 who deposed that on 05-06-2011 at 11: 30 pm he long with SIP Sanaullah Hulio reached at dead house of CMC hospital Larkana, where he saw the dead body of deceased Muhammad Ali lying on stature. Deceased was wearing off white colour shirt and grey colour potra. Dead body was examined, who had suffered one injury across the right ear and another injury was under the right ear across neck. Investigation officer prepared the mashirnama which he signed along with co-mashir Taj Muhammad. He further deposed that on 06-06-2011 at 01:15 am he along with the investigation officer and the complainant Aadam visited the place of vardat, There on the light of torch they saw a huge quantity of blood was lying on the soil and two white colour empty cartridges were lying on the ground, for which complainant disclosed to them that these cartridges were fired by the accused persons upon his brother and the same were taken into the possession and the sample of blood too was taken and sealed at the spot both mashirs signed the mashirnama in this respect. This witness was cross examined but nothing favorable to the appellants was brought by the defence counsel on record.
16. The investigation officer Inspector Sanaullah PW-09 was examined by the prosecution who deposed that on 05-06-2011 after the FIR lodged by SIP Sartaj Ahmed Jageerani he left police station along with PC Ashique Hussain towards the Chandka Hospital and in the dead house he saw dead body of deceased Muhammad Ali Dawach and after inspection prepared mashirnama, Danistnama and Lash chakas form. He deposed that the post mortem was conducted through PC Ashique Hussain who handed over the dead body to the Legal heirs of the deceased, being late night on the next day he visited the place of vardat shown by the complainant where from he collected bloodstained soil and prepared such mashirnama, he recorded statements under section 161 Cr.P.C of the witnesses, issued latter to Mukhtiarkar for sketch and on 10-06-2011 SIP Sartaj Ahmed Jageerani arrested accused Mujahid and recovered crime weapon viz gun and a separate case also registered. He deposed that on 25-06-2011 he sent bloodstained soil for chemical examination so also the crime weapon to the ballistic expert for opinion, he produced the reports and the mashirnamas. This witness was cross examined on behalf of the appellants so also the trial court cross-examined him. During cross-examination he explained the delay for sending the weapon to the expert by stating that the delay in sending the crime weapon to ballistic expert was due to that firstly they were sending the weapon to Karachi and when such facility was available at Larkana, they were informed by their high-ups to send the weapon for expert opinion to their respect range but on contact to the concerned quarters at Larkana for examination of weapon, they informed that they had yet not received any letter in this regard, therefore such delay caused in sending the weapon. On assessment of his evidence I found no any major contradiction in his evidence which favour the appellants. Thereafter the prosecution examined Sartaj Ahmed Jageerani the author of the FIR as PW-10 who deposed that on 05-06-2011 the complainant came at police station and narrated the facts of cognizable offence which he reduced in writing and lodged the FIR, he further deposed that on spy information he arrested accused Mujahid in presence of mashirs and recovered one SBBL gun from his possession so also 05 cartridges of 12 bore. This witness was also cross examined but nothing favorable to appellants was pointed out by defence counsel.
17. Contention of learned counsel for the appellant Mujahidthat in the case of recovery of crime weapon used by the appellant at the time of offence, theappellant was acquitted therefore, the appellant cannot be connected with the murder of deceased, has no force in view of that the recovery is only a corroborative piece of evidence and presence of it or absence of it cannot lead, give all the other facts and evidence, to either conviction or acquittal.In the case in hand all the prosecution witnesses supported the case of prosecution by deposing that both the appellants directly fired from their guns which hit the deceased and their direct evidence is further corroborated by the medical evidence as the doctor who examined the deceased had found firearm injuries on the person of the deceased.It is settled by now that where charge was proved by other direct, natural and confidence inspiring evidence, then even non-recovery of crime weapon is not fatal to prosecution case. Reliance is placed on the case of SikanderTeghanialias Muhammad Bux Teghani V. The State(2016 Y L R 1098) and Roshan Ali and another V. The State (2012 P.Cr.L.J 1361).
18. No doubt the identification on torch light is weak type of the identification but here in the present case the complainant party and the appellants were residing in the same village and they know each other very well. The case of prosecution is that prior to the incident appellant Mujahid Ali had alleged allegation of Karap against the son of the deceased and also issued threats. It is also established from the evidence of the prosecution witnesses that at the time of incident appellant Mujahid first gave them hakal and said to the deceased that his son Shahzado is Karo with his wife and you will not be spared. Further it was clarified during the cross-examination that gun shots were fired by the appellants from the distance of 30 feet only and the other evidence produced by the prosecution found to be reliable, trustworthy and confidence inspiring.
19. Learned counsel for the appellants not pointed out anymaterialcontradiction in the evidence of prosecution witnesses. Even in the cases where some minor contradictions may available which are not sufficient to create any serious doubt the same can be ignored which always are available in each and every case, as has been held by Honourable Supreme Court in case of Zakir Khan V. The State {1995 SCMR 1793}, relevant paragraph is reproduced as under:-
“13. The evidence recorded in the case further indicates that all the prosecution witnesses have fully supported each other on all material points. However, emphasis has been laid by Mr. Motiani upon the improvements which can be found by him in their respective statements made before the Court and some minor contradictions in their evidence were also pointed out. A contradiction, unlike an omission, is an inconsistency between the earlier version of a witness and his subsequent version before the Court. The rule is now well established that only material contradictions are to be taken into consideration by the Court while minor discrepancies found in the evidence of witnesses, which generally occur, are to be overlooked. There is also a tendency on the part of witnesses in this country to overstate a fact or to make improvements in their depositions before the Court. But a mere omission by witness to disclose a certain fact to the Investigating Officer would not render his testimony unreliable unless the improvement made by the witness while giving evidence before the Court has sufficient probative force to bring home the guilt to the accused.”
20. 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 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