IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD

Cr. Appeal No. S- 300 of 2012

Appellant : Chand Khaskheli

through Mr. Hameedullah Dahri, Advocate.

Respondent : The State through Ms. Rameshan Oad A.P.G

Date of hearing : 18.06.2021.

Date of decision : 23.08.2021.

J U D G M E N T

ZULFIQAR ALI SANGI, J:- Through this appeal, appellant Chand has challenged the Judgment dated 25.09.2012 passed by learned Sessions Judge, Umerkot in S.C. No. 112 of 2008 emanated from Crime No. 107 of 2008 registered at police station Kunri under Section 302 PPC, whereby appellant was convicted and sentenced to suffer imprisonment for life and to pay fine of Rs.2,00,000/- (two lacs) and in default thereof, he was ordered to f undergo R.I for two years more. The fine, if recovered, half of it to be paid to the legal heirs of deceased Allah Bachayo as compensation under Section 544-A Cr.P.C. However, benefit of Section 382-B Cr.P.C. was extended to him.

2. It is the case of prosecution that brother of Complainant Rajab Ali namely deceased Allah Bachayo was doing business of selling Patties on his push-cart at Kunri town, while complainant was doing mason work at Karachi. On 20.11.2008 at 9:00 p.m, complainant was informed on phone by his maternal cousin Muhammad Ramzan that his brother Allah Bachayo has been murdered by accused Chand with pistol shot on account of drawing his push-cart in his Muhallah despite being refrained by him. He was further informed on telephone that the dead body of his brother is lying in government hospital. On receipt of such telephone call, complainant reached at PS Kunri and registered the FIR.

3. After registration of FIR, police conducted investigation, arrested accused and on completion of investigation submitted challan against him in the concerned court.

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 him to which he pleaded not guilty and claimed trial.

5. The prosecution in support of its case examined P.W.1 Medical Officer Dr. Narain Das (Ex.03), P.W-02 Chain Singh (Tapedar) Ex. 05, P.W-03 Complainant Rajab Ali (Ex.06), P.W-04 Muhammad Ramzan (Ex.07), P.W-05 Muhammad Saleem (Ex.08), P.W-06 SIP Niaz Muhammad (Investigating Officer) (Ex.09).

6. The trial court recorded statement under section 342 Cr.P.C of the appellant; whereby he denied the allegations of the prosecution and claimed his innocence. However, the appellant neither examined himself on oath, nor lead evidence in his defence.

7. The trial court after hearing the parties and on assessment of the evidence convicted the appellant as stated above, hence the instant appeal.

8. Learned counsel for the appellant has contended that there is one day delay in registration of FIR which has not been explained by the complainant; that the complainant is not a eyewitness, therefore, his evidence cannot be considered; that incident was night time incident and no identification parade was held; that there are major contradictions in the evidence of PWs but the same has not been considered by the trial court; that prosecution did not examined the Magistrate, who recorded the statements of the witnesses under section 161 Cr.P.C; that there is contradiction in the ocular evidence and the medical evidence; that the prosecution has failed to establish case against the appellant by producing reliable, trustworthy and confidence inspiring evidence; that entire case is doubtful. He lastly, submitted that the appellant may be acquitted by extending him benefit of doubt. Learned counsel in support of his arguments has relied upon the cases of Nazeer Ahmed v. The State (2016 SCMR 1628), Akhtar Ali and others v. The State (2021 P.Cr.L.J 750), Naseeb Khan v. The State (2021 P.Cr.L.J 779), Muhammad Din v. The State (2021 P.Cr.L.J 839), Irshad Ahmed v. The State (2011 SCMR 1190) and Muhammad Akram v. The State (2009 SCMR 230).

9. Learned APG argued that the delay has been fully explained by the complainant as he was not available there and was informed through mobile phone, when he arrived from Karachi he lodged the FIR; that the eye witnesses fully supported the case of prosecution; that no major contractions were pointed out by defence counsel, however, if there are some minor contradictions, the same cannot be treated as fatal to the prosecution case; that the ocular evidence is supported by the medical evidence; that recovery of empties and the weapon was also sufficiently proved by the prosecution. She lastly, submitted that appellant is not entitled for any leniency and his appeal may be dismissed.

10. I have heard learned counsel for the appellant, learned APG for the State and perused the record with their able assistance.

11. The evidence produced by the prosecution in the shape of ocular evidence and medical evidence coupled with documentary evidence, including Postmortem report of the deceased, established beyond any shadow of reasonable doubt that on 20-11-2008 at about 1930 hours, deceased received firearm injuries on his person and was died due to un-natural death at the spot. Prosecution in order to prove the death of deceased as un-natural examined Dr. Narain Das, who conducted postmortem of deceased Allah Bachayo and deposed that on 21.11.2008 he was posted as Medical Officer at Taluka Hospital Kunri. It was about 08.35 A.M, when he received the dead body of deceased Allah Bachayo through the letter of P.S Kunri for conducting post-mortem along with inquest report. The dead body was having following external injuries and internal damages.

External injuries

i. A firearm wound 1.7 cm x 1.4 cm oval-shaped with black inverted margins, 0.2 cm from body of sternum on the left side of chest in between 7^th and 8^th Rib.

ii. 1 cm x 1 cm oval in shape averted are margin on back of abdomen on right side above iliac crest.

Internal damages

Thorax Difrom ruptured having blood on both sides.

Abdomen Esophagus ruptured at its lower end stomach ruptured. Small intestine ruptured. Liver ruptured. Peritoneal cavity full of blood.

The doctor further deposed that from external, as well as internal examination of dead body of deceased, he was of the opinion that the death of deceased was caused due to Hemorrhagic shock caused by firearm injury to major viscera like liver viz. Injury No.1 was sufficient to cause death in ordinary course.

12. After proving the death of the deceased being un-natural the prosecution in order to prove that who committed the offence of murder of deceased Allah Bachayo has examined complainant Rajab Ali as PW-03, who deposed that the incident took place on 20.12.2008, at about 08.00 P.M, his cousin telephoned him and informed that Chand Khaskehli has killed his brother by firing. On receiving such information he left Karachi for Kunri and reached at the Government Hospital and enquired the matter on which P.W Ramzan informed him that Chand Khaskehli had informed his brother not to bring the cart carrying patis and on this issue Chand Khaskehli got annoyed and made firing upon the deceased Allah Bachayo, and run away. After having come to know these facts, he went to P.S and registered the FIR. He was not an eye witness but he after hearing about the incident got registered the FIR.

13. The prosecution examined eyewitness of the incident Muhammad Ramzan as PW-04 who deposed that on 20.11.2008 at about 7.30 p.m. he along with P.W Muhammad Saleem were sitting at the cart along with deceased Allah Bachayo. At that time accused Chand Khaskehli came and asked the deceased Allah Bachayo that he has been warned not to come in his Muhallah, soon after Chand Khaskehli taken out his pistol and made firing upon the deceased Allah Bachayo, which hit him and he fell down and accused Chand Khaskehli succeeded to run away. This incident took place in his presence and in presence of Muhammad Saleem. Thereafter he and Saleem brought the injured in Government Hospital, where he died. Thereafter, he informed his brother on telephone who was at Karachi. In the morning, he came at the hospital. Subsequently, he registered the FIR at PS. On 21.11.2008, at about 0730 hours police examined the dead body of deceased Allah Bachayo in his presence and in presence of co-mashir Muhammad Saleem and prepared such memo. On the same day at about 0900 hours, police inspected the place of incident; he and Muhammad Saleem were acted as mashirs. Such mashirnama was prepared. The place of incident was situated at Marvari Mohalla known as Gharibabad. He further deposed that on the same day at about 13:00 hours, police secured the clothes of deceased Allah Bachayo, he and Muhammad Saleem were acted as mashirs. He further deposed that on 22.11.2008, at about 13:45 hours, police arrested the accused Chand Khaskehli from the front of his house situated at Khalid colony Kunri and from his personal search secured T.T pistol with empty magazine and prepared such memo in his presence and in presence of same mashirs. He deposed that he was produced before the Court of Judicial Magistrate Kunri where his 164 Cr.P.C. statement was recorded. This witness was cross examined by the defence counsel but failed to bring on record any thing favourable to the appellant.

14. Another eye witness namely Muhammad Saleem PW-05 was examined by the prosecution, who deposed that he knows deceased; he used to sell Patties on a pushcart. On 20.11.2008, at about 07.30 P.M., he along with Muhammad Ramzan and Allah Bachayo (now deceased) was sitting at the cart of deceased, when accused came there and asked the deceased as to why he had parked his cart in his Muhallah and within their sight he took out pistol from the fold of his Shalwar and fired at deceased, which hit him on left side of chest and he fell down on the ground and the accused made good his escape. He further deposed that he along with Ramzan immediately took Allah Bachayo, who by then was unconscious on account of firearm shot, to Taluka Hospital Kunri, where doctor declared him dead. They informed Rajab Ali, the brother of deceased, who at that time was at Karachi. On hearing such news, he came to hospital in the morning of 21.11.2008 and after seeing the dead body of his brother went to police station where he lodged the FIR against the accused. The police after registration of FIR came to hospital and saw the dead body. At about 09.00 a.m, the police visited the place of vardat on his pointation as well as on the pointation of Ramzan. Police collected the blood stained earth from the place of vardat. On the next day i.e. 22.11.2008, at about 1.45 P.M accused was arrested by police near from his house situated in Khalid Colony Kunri.

15. The prosecution examined ASI Niaz Muhammad PW-06 (Investigation officer), who deposed that the FIR of the present case was registered on 21.11.2008, while the incident took place on 20.11.2008. The investigation was entrusted to him, as such he along with complainant went to Government hospital Kunri, where the dead body of deceased Allah Bachayo was lying. He after legal formalities and letter for postmortem went to visit the the place of vardat on the pointation of Muhammad Saleem and Muhammad Ramzan and prepared such mashirnama. He further deposed that he secured one empty of 30 bore pistol and 2 / 3 blood stained stones from the place of vardat, which he sealed separately for chemical examination and ballistic report. He deposed that he then returned to hospital. After post-mortem, dead body was handed over to the relatives of the deceased. He then came back to PS, where PC Muhammad Hanif handed over the blood stained clothes of deceased, which was secured by him vide mashirnama in presence of mashirs Ramzan and Saleem. He deposed that on 22.11.2008 he recorded the statements of both the mashirs, who were also the eyewitnesses and on their pointation arrested the accused from outside of his house situated in Khalid Colony and secured one T.T. pistol of 30 bore with magazine having No.46629 engraved on it, which he sealed at the spot in cloth bag and prepared such mashirnama in presence of mashirs Muhammad Ramzan and Saleem and lodged separate FIR under Section 13(d) Arms Ordinance against the accused. The blood stained clothes of deceased Allah Bachayo and two pieces of stone secured from the place of vardat, were sent to the chemical examiner at Karachi while 30 bore Pistol No. 46629 with magazine and one 30 bore crime empty was sent to Forensic Division Karachi for ballistic opinion. On 23.11.2008, he received post-mortem report from Medical Officer Dr. Narain Das and on 24.11.2008 issued a letter to Mukhtiarkar for deputing Tapedar for preparing sketch of scene of occurrence. On 01.12.2008, he got recorded the statements of PWs Muhammad Saleem and Muhammad Ramzan before the Judicial Magistrate Kunri under Section 164 Cr.P.C. After completing investigation, he submitted the challan and subsequently received the chemical analyzer report and ballistic report from concerned. This witness was also cross examined by the defence counsel but his evidence was not shattered. Another witness Chain Singh (Tapedar) was examined by the prosecution who prepared the sketch of the place of vardat and also produced the same before the trial court.

16. The evidence produced by the prosecution was reassessed and on reassessment of the entire evidence, the important part of which discussed above, and after hearing learned advocate for both the parties, I find that the prosecution has proved its case against the appellant for the offences charged beyond shadow of reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence. Two eye witnesses who are independent witnesses have fully supported the case of prosecution and they both were cross-examined but their evidence was not shattered by the defence counsel. Only the one person (appellant) was nominated in the FIR for committing murder of the deceased having no enmity with the complainant, which may suggest false implication. Crime weapon viz pistol was recovered from the appellant and the FSL report indicates that the empty recovered from the place of vardat was matched with the said pistol. The FSL report was also exhibited in the evidence and is available in the paper book at page 80 and was not challenged by the defence.

17. Learned counsel for the appellant pointed out some minor contradictions and discrepancies in the evidence of witnesses, which in my view are not sufficient to hold that the case of prosecution is doubtful. It is settled by now that, where in the evidence, prosecution established its case beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence supported by other viz medical and circumstantial evidence then if there may some minor contradictions which always are available in each and every case such may be ignored, as has been held by Honourable Supreme Court in case of Zakir Khan V. The State {1995 SCMR 1793}. Relevant paragraph is reproduced as under:-

“13. The evidence recorded in the case further indicates that all the prosecution witnesses have fully supported each other on all material points. However, emphasis has been laid by Mr. Motiani upon the improvements which can be found by him in their respective statements made before the Court and some minor contradictions in their evidence were also pointed out. A contradiction, unlike an omission, is an inconsistency between the earlier version of a witness and his subsequent version before the Court. The rule is now well established that only material contradictions are to be taken into consideration by the Court while minor discrepancies found in the evidence of witnesses, which generally occur, are to be overlooked. There is also a tendency on the part of witnesses in this country to overstate a fact or to make improvements in their depositions before the Court. But a mere omission by witness to disclose a certain fact to the Investigating Officer would not render his testimony unreliable unless the improvement made by the witness while giving evidence before the Court has sufficient probative force to bring home the guilt to the accused.”

18. Thus based on the discussion made hereinabove, I am of the considered view that the prosecution has proved its case beyond a reasonable doubt against the appellant by producing reliable, trustworthy, and confidence-inspiring oral evidence, as well as medical evidence, recovery of the empties of pistol from the place of vardat and the pistol used by the appellant with positive FSL 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.

19. The above appeal is disposed off in the above terms.

                                                                             J U D G E