IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

 

Cr. Jail Appeal No. S-238 of 2016

 

 

Appellants:                              Jinsar Ali Lashari and others through Mr. Aamir Mustafa Kamario, Advocate.

 

The State:                                Through Syed Sardar Ali Shah, DPG

                                               

Date of hearing:                       18.04.2022.

Date of decision:                      18.04.2022.

 

 

J U D G M E N T

 

ZULFIQAR ALI SANGI, J:-                Through this appeal, the appellants have challenged the impugned Judgment dated 29.11.2016, passed by learned 1st Additional Sessions Judge, Khairpur, in Sessions Case No.457/2013 re-“The State v. Jinsar Ali and others”, arising out of Crime No.35/2013, registered at Police Station Sorah, under Section 302, 114, 34 PPC, whereby the appellants were convicted for the offence u/s 302(b) PPC r/w Section 114/34 PPC as Tazir and sentenced to suffer imprisonment for life. All the accused are directed to pay compensation of Rs.100,000/- each to the legal heirs of the deceased, and in case of default, they shall further undergo SI for six months; however, the benefit of Section 382-B Cr.P.C was extended to the accused persons. 

 

2.              The brief facts of the prosecution case are that on 17.03.2013 at 1230 hours complainant Mir Muhammad Lashari lodged an FIR stating therein that 10/12 days back his son Imtiaz Ali Lashari had exchanged harsh words with Jinsar Ali Lashari over water rotation, on that he used to issue threats to him for which his son had made the complaint and he had apprised such facts to Nekmards of the locality. On the day of the report in the morning time Complainant, his son Imtiaz Ali aged about 18/19 years and relative Ali Gul were going to Misali Goth in connection with some work on a motorcycle, his son was plying the motorcycle, at about 1100 hours when they reached near the house of Kazim Dharejo where they saw accused Jinsar Ali armed with a gun, Gulzar Ali with a pistol, Talib Ali with Pistol, who pointed their weapons and signalled them to stop, on which Imtiaz stopped motorcycle, accused Gulzar Ali and Talib Ali pointed weapons, while accused Jinsar made his son Imtiaz stand on Top/Path then on the instigation of accused Gulzar and Talib to accused Jinsar that don’t spare Imtiaz as he had insulted him on the dispute of water rotation on which accused Jinsar Ali fired directly from his gun upon Imtiaz which hit him on his head and another fire hit him on his chest, blood started oozing from his injuries and he fell down on the ground and was struggling for his life. On cries and fire reports PWs Mumtaz Ali and other persons came, noticing them all the accused went away. The complainant saw that Imtiaz had received injuries on his temple region and brain matter came out and one injury was found on the chest and he died on spot, then leaving the witnesses over a dead body, complainant appeared at PS and lodged FIR.

 

3.              During investigation ASI Ghulam Qasim Shar arrested accused Jinsar Ali, Gulzar Ali and Talib Ali Lashari from the top eastern side from Beerin-Wari-Pull at 1400 hours in presence of mashirs HC Barkat Ali and PC Akhtiar Hussain and from accused Jisnar Ali he recovered one DBBL Gun and three live cartridges, and from accused Gulzar Ali one Desi Pistol and two live cartridges were recovered which were sealed on spot. Both the accused failed to produce valid licenses of their respective weapons, while accused Talib was empty-handed. The gun and pistol were sealed on spot in presence of mashirs. After completion of the investigation, the challan was submitted before the Court having jurisdiction.

 

4.              After supplying the necessary documents to the accused the charge was framed against them to which they pleaded not guilty and claimed for trial.

 

5.              During trial Prosecution examined complainant Mir Mohammad at Ex.7, he produced FIR at Ex.7/A, receipt of delivery of dead body at Ex.7/B. PW Ali Gul was examined at Ex.8. PW Mumtaz Ali was examined at Ex.09. ASI Ghulam Qasim was examined at Ex.10, Mashir Mohammad Salik was examined at Ex.11, he produced memo wardat; memo of recovery of clothes, inquest report of deceased at Ex.11/A to Ex.11/C. Tapedar Muhammad Khan was examined at Ex.12, he produced a sketch of wardat at Ex.12/A. ASI Khalil Ahmed Soomro was examined at Ex.13, he produced a letter to SSP Khairpur, a Letter to Mukhtiarkar Nara, a permission letter, and a report from Chemical Examiner at Ex.13/A to 13/D respectively. PC Mushtaque Ali was examined at Ex.14, he produced an inquest report at Ex.14/A. Dr Ahmed Ali Shar was examined at Ex.15, he has produced post mortem report of the deceased at Ex.15/A, and a police letter at Ex.15/B. HC Barkat Ali was examined at Ex.16, he produced mashirnama of arrest and recovery of the accused at Ex.16/A. Thereafter, learned ADPP for State closed the side of prosecution vide his statement at Ex.17.

 

6.              The statements of accused u/s 342 Cr.P.C were recorded at Ex.18 to 20, in which all the accused have denied the allegations of prosecution levelled against them. However neither they examined themselves on oath nor led any evidence in their defence.

 

7.                On reassessment of evidence so also after hearing the parties, the trial Court has passed the impugned judgment whereby the appellants were convicted and sentenced as stated above, hence this appeal.

 

8.              Learned counsel for the appellants has contended that the prosecution has failed to prove its case beyond reasonable doubt; that learned trial Court did not appreciate the important aspect regarding the major contradictions of the prosecution case; besides there are many lacunas and contradictions in the evidence of PWs; and the witnesses are interested one, being relatives of Complainant; that there is delay in lodging of FIR, which has not been properly explained by the prosecution; that the complainant party admitted in their evidence that there was dispute between the parties over water rotation; learned trial Court has decided the case on the basis of allegation listed in the FIR without either appreciating or considering the evidence or other material available on record; 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 the benefit of the doubt, the appellants may be acquitted.

 

9.              Learned DPG appearing for the state has supported the impugned judgment and further contended that the prosecution has proved its case against the appellants beyond any reasonable shadow of a doubt by producing oral as well as documentary evidence; that the learned trial court has rightly convicted the appellants and they do not deserve any leniency; that there appears no illegality or irregularity in the impugned judgment which is well reasoned and does not require any interference of this court.

 

10.     I have heard learned counsel for the parties and have gone through the material available on record with their able assistance.

11.     The entire evidence produced by the prosecution is scanned and I am of the view that the prosecution has successfully proved the case against the appellant Jinsar Ali beyond the shadow of reasonable doubt; however from the re-assessment of the evidence it appears that the prosecution has failed to prove the case against appellants Gulzar Ali and Talib Ali.

12.              The incident took place on 17-03-2013 at 1100 hours and the FIR was registered on the same day at 1230 hours though the distance in between the place of vardat and the police station was about 35/36 KM. After registration of the FIR, the police proceeded towards the place of the incident and inspected the same including the dead body and recovered crime articles mentioned in the mashirnama prepared at 1400 hours.  The dead body was shifted to the hospital where the post-mortem was conducted from 3.50 pm to 4.45 pm. All these facts excluded the possibility of consultation or deliberation on the part of the prosecution. The Honourable Supreme Court in the case of Farman Ali and another v. The State and another (2020 S C M R 597), has held as under:-

                                      4.         We have heard the learned counsel for the petitioner Farman Ali in Criminal Petition No.29-P/2012, and also perused the whole record in Jail Petition No.76/2012, preferred by Amjad Ali co-convict of Farman Ali and observed that in this case the occurrence took place at about 5.15 p.m. The Police after coming to know about the occurrence arrived in the Emergency Department of the Hospital where Muhammad Askar Khan, Complainant/PW-1, reported the matter. The postmortem was conducted on the same day after about one hour of the occurrence. In the FIR, it is specifically mentioned that the petitioners Farman Ali and Amjad Ali along with Malik Alam (P.O.) fired at the deceased Muhammad Ajmal Khan. Due to their firing, the deceased received fire shots and succumbed to the injures. The names of the eye-witnesses have specifically been mentioned in the FIR. In this case, the matter was promptly reported to the police and the postmortem was also conducted promptly, which exclude the possibility of consultation or deliberation on the part of the prosecution.

 13.              The prosecution in order to prove its case examined Complainant Mir Muhammad, who stated that on 17.03.2013 at 11:00 a.m. he along with deceased Imtiaz and PW Ali Gul went towards the village Mesali from their village on a motorcycle. They found accused Jinsar armed with a gun, accused Talib and Gulzar with pistols and on the force of weapons, they stopped the motorcycle and then accused Jinsar made straight fires on deceased Imtiaz, which hit him on the left side of his head and his chest, resulting thereby, the complainant’s son Imtiaz Ali died on the spot. PW Ali Gul also supported the version deposed by the complainant in the same line. PW Mumtaz Ali was also examined, who deposed that he reached the place of the incident after hearing fire shots where he saw accused Jinsar with a gun while remaining accused with pistols. He also found the deceased Imtiaz lying at the place of the incident. All the three witnesses were cross-examined at length. No major contradictions were found in their evidence; however, some minor contractions are available, which in my view are natural. The complainant during cross-examination admitted the relation with one Ghulam Qadir Dharejo as being his co-villager and denied the suggestion that in his instance this case was registered against the accused persons. The complainant also denied the suggestion that accused Gulzar and Jinsar were with the complainant party at the time funeral ceremony. There is no denial of the natural death of the deceased. The evidence recorded in the case further indicates that all the prosecution witnesses have fully supported each other on all material points and their evidence is further corroborated by the medical evidence and recovery of the weapon used by the appellant Jinsar at the time of the incident. Though the witnesses are close relatives of the complainant and the deceased they have no strong motive to falsely implicate an innocent person in a murder case while substituting the actual culprit. The dispute shown by the complainant was a dispute on the rotation of water and the same has not been denied by the accused persons nor do they have any strong defence which may suggest that the appellant/accused has not murdered decease Imtiaz. However, the evidence produced by the prosecution is reliable, trustworthy and confidence-inspiring which is also supported by the medical evidence and other circumstantial evidence including the recovery of the crime weapon. The presence of witnesses at the time of the incident has been proved by the prosecution beyond any shadow of the doubt. The mere fact that a witness is closely related to the accused or deceased or he is not related to either party, is not a sole criterion to judge his independence or to accept or reject his testimony rather the true test is whether the evidence of a witness is probable and consistent with the circumstances of the case or not. Reliance is placed on the case of Lal Khan v. State (2006 SCMR 1846).

14.              It is observed that to believe or disbelieve a witness all depends upon the intrinsic value of the statement made by him. Even otherwise, there cannot be a universal principle that in every case an interested witness shall be disbelieved or a disinterested witness shall be believed.  It all depends upon the rule of prudence and reasonableness to hold that a particular witness was present at the scene of the crime and that he is making a true statement. A person who is reported otherwise to be very honest, above board and very respectable in society gives a statement which is illogical and unbelievable, no prudent man despite his nobility would accept such a statement. Reliance can be placed on the case of Abid Ali & 2 others v. The State (2011 SCMR 208).   It is well settled by now that merely on the ground of inter se relationship the statement of a witness cannot be brushed aside. Even the ‘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 as has been held by the Honourable Supreme Court of Pakistan in the cases of Zulfiqar Ahmed & another v. The State (2011 SCMR 492) and Iqbal alias Bala v. The State (1994 SCMR 01). 

15.              In support of the ocular evidence the prosecution produced medical evidence and examined Dr. Ahmed Ali, who conducted the postmortem of the deceased and during postmortem had found the following injuries on the person of deceased:-

“1.        One fire arm injury on the right temporal region of head measuring 1.cm in diameter x circular edges inverted in% bone deep passing through and through at left temporal region of head measuring 5 cm irregular in shape edges averted into bone deep and brain matter was out of skull. (exit wound).

2.         One fire arm injury, near to the injury No.l on the right temporal region measuring 1 cm in diameter circular edges inverted into bone deep passing through and through from left temporal region of head from the same exit wound of injury No.1.

3.         Seven lacerated type punctured wound (fire arm injuries) on the left anterolateral aspect of chest close to each other each one measuring 1 cm in diameter edges inverted circular in shape passing through and through right posterolateral side of chest measuring each 1.5 cm into diameter edges averted”.

                   From the external as well as an internal examination of the deceased Imtiaz Ali the doctor was of the opinion that death occurred due to shock and hemorrhage which resulted from firearm injuries collectively all the injuries were sufficient to cause death in the ordinary course of nature. During the cross-examination, he stated that the deceased sustained fire shots at a distance of more than 6 feet. The distance between injuries No.1 and 2 would be about 1. cm. The injury No.3 was sustained by the deceased in the shape of a group. The injury No.3 was through and through and due to that injury lungs, pancreas, liver and heart was ruptured.  The doctor also on the suggestion made on behalf of the accused stated that the injuries were on the vital organs of the deceased therefore, death occurred instantaneously.

     From the perusal of the medical evidence, it established that the ocular evidence is in line with the medical evidence. It may be the repetition but necessary to clear that the FIR of the present incident was lodged promptly with no delay and there is no room for consideration that the same was registered with consultation or deliberation. The version given by the complainant in the FIR and at the time of recording his evidence before the trial court is fully supported by the medical evidence.

16.               After scanning the ocular evidence produced by the prosecution, I have examined the evidence of PW Muhammad Salik produced by the prosecution as a mashir, who deposed that in his presence the place of incident was visited by the police where two empty cartridges and blood stained earth was recovered and its memo was prepared. Mashirnama of inspection of the dead body was also prepared in his presence. He stated during cross-examination that the empties of cartridges were lying at a distance of 4/5 paces from the deceased. His evidence has support from the evidence of a doctor who during cross-examination has stated (while denying the suggestion made on behalf of the accused) that “It is incorrect to suggest that group injuries can be caused bellow the distance of 4/5 feet.” The doctor also stated that the deceased sustained fire shots at the distance of more than 6 feet. The prosecution also examined ASI Khalil Ahmed, who has conducted the investigation and visited the place of Vardat, and, according to him, he saw firearm injuries on the deceased at the front of his left chest, which was through and through and other fire was at the right side of the head, which was through and through. He had recovered two empties of cartridges from the place of incident and blood stained earth also. He prepared memos and inquest reports and thereafter sent the dead body to RHC Nara Gate for postmortem. 161 Cr.P.C statement of PW was recorded and handed over the dead body to the complainant party after receipt. On 24.03.2013, ASI Ghulam Qasim Shar handed over him wanted criminals namely Jinsar, Gulzar and Talib and also handed over one DBBL gun allegedly recovered from accused Jinsar along with two cartridges and a country-made pistol recovered from accused Gulzar along with two live cartridges in sealed condition. Two separate FIRs under the arms act were registered. The Mashir and investigation officer were cross-examined at length, but the defence failed to bring any substantial material which favours the accused.

17.               In respect of the recovery of weapons used by the appellant Jinsar at the time of committing murder, PW Barkat Ali the mashir of recovery stated that on 24.03.2013, he along with ASI Ghulam Qasim Shar, on receiving spy information, had arrested the accused Jinsar, Gulzar and Talib from the top of NARA Canal and recovered DBBL gun from accused Jinsar along with one currency note of Rs.100/- including one country-made pistol from accused Gulzar along with two live cartridges and from Talib Hussain they recovered six currency notes of Rs.20/-. No substantial material was brought on record by the defence counsel to disbelieve the recovery of the crime weapon used in the commission of the offence by the appellant Jinsar Ali.

18.               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 the prosecution is doubtful. It is settled by now that, wherein the evidence, the prosecution established its case 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.”

 

19.             Thus based on the discussion made hereinabove and on the reassessment of the 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 Jinsar Ali by producing reliable, trustworthy, and confidence-inspiring oral evidence as well as medical evidence, recovery of crime weapon so also the documentary evidence in support of the same. I, therefore, uphold all the sentences, fines, and penalties for each offence awarded to the appellant Jinsar Ali in the impugned judgment whilst dismissing his appeal.

 

 20.              Turning to the case of Appellants Gulzar and Talib, there is no evidence against them in respect of active participation during the occurrence though it is alleged by the prosecution witnesses that they were armed with pistols and were available at the time of the commission of the offence but said pistols were not used by them. None of the prosecution witnesses, during their evidence, has deposed a single word against the appellants Gulzar and Talib in respect of sharing of their common intention with the main accused Jinsar Ali. The mashirnama of inspection of the place of incident is examined which reflects that only two empties of cartridges of 12 bore were recovered which were allegedly used by co-accused Jinsar Ali and no empty of the pistol was recovered from the place of vardat. The PW Ali Gul only stated that two accused facilitated accused Jinsar Ali however it is not clear from his evidence as to what action they have done at the time of the incident in respect of facilitation. PW Mumtaz Ali only stated that he saw the accused persons while they were running. In the circumstance and the evidence as disused above the presence of the accused Gulzar and Talib at the time of the incident is highly doubtful. The Honourable Supreme Court of Pakistan in the case of Muhammad Zafar and another v. Rustam Ali and others (2017 SCMR 1639), has observed as under:-

3.         After hearing learned counsel for the appellant, learned Additional Prosecutor General for the State and perusal of the record, it has been observed by us that respondents Nos.3 to 5 namely Muhammad Ali, Muhammad Siddique and Muhammad Ashraf were rightly acquitted by the learned trial court. Along with respondents Nos.3 to 5 their eight other co-accused were also acquitted and their acquittal was not assailed any further by the complainant or by the State. Consequently acquittal of respondents Nos.3 to 5 was not interfered by the learned Division Bench of the Lahore High Court for valid reasons recorded in the impugned judgment. Since no active role except a proverbial lalkara was attributed to Muhammad Yaqoob (respondent No.2), therefore, he was also rightly acquitted by the learned appellate court. With the assistance of learned counsel for the appellant and learned Additional Prosecutor General Punjab for the State we have examined the record and the reasons recorded by the learned appellate court for acquittal of respondent No.2 and for not interfering with the acquittal of respondents Nos.3 to 5 are borne out from the record. No misreading of evidence could be pointed out by the learned counsel for the complainant/ appellant and learned Additional Prosecutor General for the State, which would have resulted into grave miscarriage of justice. The learned courts below have given valid and convincing reasons for the acquittal of respondents Nos.2 to 5 which reasons have not been found by us to be arbitrary, capricious or fanciful warranting interference by this Court. Even otherwise this Court is always slow in interfering in the acquittal of accused because it is well settled law that in criminal trial every person is innocent unless proven guilty and upon acquittal by a court of competent jurisdiction such presumption doubles. As a sequel of the above discussion, this appeal is without any merit and the same is hereby dismissed.

21.              In view of such position, it is established that the prosecution has failed to prove the case against Appellants Gulzar and Talib. Resultantly, they are acquitted from the charges and were ordered to be released if they are not required in any other custody case.

 

22.               These are the reasons for the short-order dated 18.04.2022, whereby the appeal of the appellant Jinsar Ali was dismissed; however the appeal against appellants Gulzar Ali and Talib Ali was allowed and they were acquitted of the charges and were ordered to be released forthwith if not required in any other custody case. 

 

JUDGE