IN THE HIGH COURT OF SINDH, BENCH
AT SUKKUR.
Appellant:
Ghulam Akbar son of
Ghulam Asghar by caste Rind. (Confined in Central Prison Khairpur).
Through Mr. Muhammad Farooq
Khan, Advocate.
Complainant: Sajjad
Hussain son of Abdul Rehman bycaste Rind.
Through
Mr. Nisar Ahmed Bhanbhro, advocate.
The State: Mr.
Khalil Ahmed Maitlo, Deputy Prosecutor General
Date of hearing: 28-03-2022
Date of judgment: -04-2022.
J U D G M E N T
Amjad Ali
Sahito, J.- By filing the instant Crl. Jail
Appeal, through Senior Superintendent Central Prison Khairpur, appellant Ghulam
Akbar Rind has impugned the judgment dated 08-12-2016
passed by learned IInd Additional Sessions Judge Khairpur, in Sessions Case No.
997/2011 (Re. The State Vs. Ghulam Akbar Rind), offence u/s 302 PPC, Crime No. 219/2011
registered at Police Station Mirwah, whereby he has been convicted under
section 265H(ii) Cr.P.C and sentenced to suffer imprisonment for life and to
pay fine of Rs. 100,000/- as compensation to the legal heirs of the deceased
Athar Hussain. In case of failure, the accused/appellant shall further undergo
S.I for six months more with benefit of section 382-B Cr.P.C.
2. Brief facts of the case are that on
09-08-2011 complainant Sajjad Hussain lodged the FIR alleging therein that on
the said date at evening time, he and Athar Hussain were available near Girls
Middle School Usmanabad, where Athar Hussain was talking with someone on mobile
phone. Meanwhile Akhtar and Saleem also came there and they were chitchatting
with each other. At about 6-30 pm accused Ghulam Akbar Rind armed with TT
pistol came there and made direct fire of pistol upon Athar Hussain with
intention to commit his murder, which hit him and he fell down. Then accused
fled away from the spot. Thereafter complainant party took the injured Athar
Hussain towards RHC Mirwah for treatment, where he succumbed to the injuries.
Ultimately complainant appeared at Police Station and lodged the above said FIR
against the accused.
3. After completing of the investigation,
Investigating Officer submitted the challan u/s 173 Cr.P.C before the Court having jurisdiction by showing
accused Athar Hussain in custody. The R & Ps received by the Court of
learned IInd Additional Sessions Judge Khairpur by way of transfer for its disposal according to law. After
supplying the case papers, the charge against accused Ghulam Akbar was framed
at Ex. 3, to which he pleaded not guilty and claimed to be tried vide his plea
recorded at Ex. 4. In order to prove the guilt against the accused, the
prosecution has examined PW/1 complainant Sajjad Hussain at Ex. 6, who produced
the Police letter at Ex.6/A and FIR at Ex. 6/B. PW/2 Akhtar Hussain at Ex. 7,
PW/3 medical officer Dr. Ansar Ali Gopang at Ex. 8, who produced the police
letter at Ex. 8/A and post mortem report at Ex. 8/B, PW/4 PC Dilbar Hussain at
Ex. 9, PW/5 Tapedar Asif Ali at Ex. 10, who produced sketch/report at Ex. 10/A.
Learned ADPP for the State given up PWs Saleem Raza and mashir Fida Hussain on
application of complainant vide his statement Ex.11. PW/6 Imtiaz Ali at Ex. 12,
who produced inquest report t Ex. 12/A, memo of injures at Ex. 12/B, memo of
recovery of empties and blood stained earth at Ex. 12/C and memo of last worn
clothes at Ex. 12/D, PW/7 ASI Imam Bux at Ex. 13, he produced departure entry
No. 18 at Ex. 13/A, PW/8 SIP/SIO Qalandar Bux at Ex. 14, who produced letters
written to SSP and Mukhtiarkar at Ex. 14/A & B, departure entry at Ex.
14/C, memo of arrest and recovery at Ex. 14/D, arrival entry at Ex. 14/E and
report of chemical examiner at Ex. 14/F. Thereafter learned ADPP for the State
closed the side of prosecution vide statement as Ex. 15.
4.
The accused in his statement under
section 342 Cr.P.C,
at Exh.17, denied the allegations leveled against him by the prosecution and
further stated that he is innocent and has falsely been implicated by the
complainant in this case. The accused examined himself on oath being DW/1 at
Ex. 19 and produced certified true copy of Judgment passed in 13 (d) Arms
Ordinance case at Ex. 19/A. In his defense, accused has examined DW/2 Raham Ali
at Ex. 20 and DW/3 Zaheer Hussain at Ex. 21 and closed the side vide his
statement at Ex. 22.
5. The
learned Trial Court, after hearing learned counsel for the parties and
appraisal of the evidence, convicted and sentenced the appellant/accused as
stated above by extending him the benefit of section 382-B Cr.P.C vide judgment
dated 08-12-2016. The conviction and
sentence recorded by the learned trial Court are impugned by the appellant
before this Court by way of filing instant Crl. Jail Appeal.
6. Learned advocate for the appellant/accused
argued that appellant/accused is innocent and falsely been implicated in this
case by the complainant with malafide intention and ulterior motive; that there
is inordinate delay of about one day in lodging the FIR and such delay has not
been explained, which shows that the FIR has been lodged after consultation and
deliberation; that medical evidence is not supported with ocular evidence
regarding the seat of injury; that the case of prosecution is highly doubtful
and it is well settled law that benefit of doubt is already extended to the
accused; that all the witnesses are close relatives of complainant, they are
highly interested witnesses and their evidence is not reliable and trustworthy
in absence of independent corroboration; that appellant has nothing to do with
the alleged offence, but the story set up in the FIR is false, concocted and
flimsy one; that there are so many contradictions and improvement in the
evidence of complainant
and eye witnesses, but learned trial Court has not given weight to it; that
trial Court has miserably failed to appreciate and assess the evidence which
has been given by the prosecution against the appellant; that prosecution has
miserably failed to bring the charge against the appellant and the impugned
judgment is not based on the correct appraisal of the evidence and it is based on
presumptions and assumptions, hence he pray that appellant is liable for his
acquittal. He placed his reliance on the cases of Liaquat Ali Vs. The State (2008
SCMR 95), Abdul Majeed Vs. Mulazim Hussain and others (PLD 2007 Supreme Court 637), Sher Ghazi Vs. The State (2007 P.Cr.L.J 354), Pervaiz Khan and
another Vs. The State (2022 SCMR 393),
Muhammad Idrees and another Vs. The State and others (2021 SCMR 612), Qamar Sultan Vs. The State (2021 YLR 1870), Mst. Fareeda and another Vs. The State (2021 YLR 1828), Zulfiqar Ali Vs. The
State (2021 SCMR 1373), Muhammad
Asif Vs. The State (2017 SCMR 486), Bad
Shah Jamil Vs. Muhammad Janbaz Khan (2021
YLR1745), Muhammad Akram and others Vs. The State (2005 YLR 1240) [Lahore] and Muhammad Akram Vs. The State (2009 SCMR 230).
7.
Learned DPG for the State assisted by
the learned counsel for the complainant argued that appellant is named in the
FIR with specific role; that complainant Sajjad Hussain and PW Akhtar Hussain are
the eyewitnesses of the incident, who have fully supported the case of the
prosecution; that the medical evidence was in consistency with the version
of the complainant and
P.Ws, which was corroborated by
the recovery of one empty of 30 bore pistol from the place of incident. He
lastly prayed that the learned trial Court has rightly
appreciated the evidence while recording conviction and sentence of the
appellant in accordance with law, thus he lastly prayed for dismissal of the
instant Crl. Jail Appeal. He placed his reliance on cases of Talib Hussain and others Vs. The State and
others (2009 SCMR 825), Javed Akhtar
Vs. The State (PLD 2020 Supreme Court
419), Abdul Rehman Vs. The State (2019
P.Cr.L.J 161), Meer Nawaz and another Vs. The State (2019 P.Cr.L.J 17), Abdul Khaliq Vs. The State (2020 SCMR 178) and Abdul Aziz alias
Abdullah Vs. The State (SBLR 2020 Sindh
122).
8. I have heard learned
counsel for the parties and perused the material available on record.
9. On the evaluation
of the material brought on the record, it appears that the case of prosecution solely
depends upon the ocular and circumstantial evidence
adduced in the shape of evidence of the complainant as well as eyewitness Akhtar
Hussain, Investigating officer, Medical Officer and other witnesses of the
case. In order to prove the case against the appellant, the prosecution has
examined complainant Sajjad Hussain and eyewitness Akhtar Hussain. Both the
above witnesses with one voice narrated the story which was disclosed by the
complainant in the FIR and P.Ws in their 161 Cr.P.C statements that on
the day of report, when complainant along with his nephew Athar Hussain left
their house at about 6-15 pm to graveyard for Dua purpose and when they reached
near Middle School Usman Rind, deceased Athar Hussain talking on mobile with
someone. Meanwhile PW Akhtar Hussain and Saleem Raza also reached at the spot.
They were talking with each other, It was about 6-30 pm, when accused Ghulam
Akbar having TT pistol came running towards them. They enquired from him that
where he is going, on which he replied that he is going to commit murder and
then within their sight he made straight fire upon his nephew Athar Hussain,
which fire it to Athar Hussain at his abdomen and he fell down while crying,
then accused ran away from the spot along with pistols. They checked the Athar
Hussain and found that he had sustained firearm injury at his abdomen. On fire
shot and their cries, some villagers reached at the spot. Then they took away
injured Athar Hussain towards RHC Mirwah, where after examination of medical
officer disclosed that Athar Hussain had already been expired. Then complainant
left the dead body in the Hospital and had gone towards PS Mirwah, where got
entry against the accused and also obtained letter for post mortem of deceased.
He produced such letter at Ex. 6/. After handing over letter medical officer had
conducted the post mortem of deceased Athar Hussain and then they took away the
dead body to their village for burial purpose. On next date of the incident,
after burial the dead body, he had gone to PS Mirwah along with PWs, where he lodged
the FIR against the accused, which is produced at Ex. 6/B. He showed the place
of wardhat to police on 09-08-2011 from where police had collected bloodstained
earth of deceased and sealed the same at the spot in their presence. Police had
also collected one empty of pistol, which was lying about six feet away from
the place, where dead body was lying and then police went back to police
station. The mashirnama of wardhat was prepared by the police at the spot.
Accused present in Court is same. In order to support the version of the
complainant, the prosecution has examined PW Akhtar Hussain, who is eyewitness
of the incident and fully supported the version of complainant as well as
contents of FIR. The complainant and eyewitness were
cross-examined by the defence at length wherein the learned counsel for the
defense asked multiple questions to shatter their confidence but he could not
extract anything from any of the said witnesses, who remained consistent on all
material points. The parties are known to each other, so there was no chance of
mistaken identity of the appellant.
10.
In the instant matter, the complainant as well as eyewitness
has sufficiently explained the date, time, place of incident, manner of
occurrence, and involvement of the appellant. There can be no denial to the
legally established principle of law that it is always direct evidence that is
material to decide the fact and to prove the charge. Insufficient,
contradictory, discrepant direct evidence is deemed adequate to hold a criminal
charge as not proved but where direct evidence remains in the field with that
of its being natural and confidence-inspiring then the requirement of
independent corroboration is only a rule of abundant caution and not a
mandatory rule to be applied invariably in each case. Reliance may be placed
upon the case of Muhammad Ihsan v. The State (2006 SCMR 1857) wherein
the Apex Court has held that:
“5. It be
noted that this Court has time and again held that the rule of corroboration is
rule of abundant caution and not a mandatory rule to be applied invariably
in each case rather this is settled principle that if the Court is
satisfied about the truthfulness of direct evidence, the requirement of
corroborative evidence would not be of much significance in that, as it may as
in the present case eye-witness account which is unimpeachable and
confidence-inspiring character and is corroborated by medical evidence.”
11. From the perusal of the evidence of the
complainant and eyewitness, it appears that they cannot be termed as chance
witnesses rather would fall within the category of natural witnesses; deceased Athar
Hussain was the nephew of the complainant. The presence of the complainant Sajjad
Hussain and PW Akhtar Hussain at the time and place of incident is not disputed
and both these witnesses are natural witnesses. It may be added here that the
status of one being a natural witness would never unnecessarily stand to be the
witness of truth but always to the satisfaction of the Court. For which
witnesses have given the detail of the incident in a manner that is believable
to a prudent mind. Reliance in this regard is placed on the case of Abid
Ali and 02 others v. The State (2011 SCMR 208) wherein the
Apex Court has held that:
“21. To believe
or disbelieve a witness all depends upon intrinsic value of the statement made
by him. Even otherwise, there cannot be a universal principle that in every
case interested witness shall be disbelieved or disinterested witness shall be
believed. It all depends upon the rule of prudence and reasonableness to hold
that a particular witness was present on the scene of crime and that he is
making true statement. A person who is reported otherwise to be very
honest, above board and very respectable in society if gives a statement, which
I illogical and unbelievable, no prudent man despite his
nobility would accept such statement”.
12. The direct evidence also finds support from the
medical evidence concerning the cause of death of deceased Athar Hussain so
also the time of the incident. It is established from the evidence of Senior Medical
Officer Dr. Ansar Ali Gopang who deposed that on 09-08-2011 he was posted as
medical officer at RHC Mirwah. One the same day PC Dilber Ali Mallah brought
the dead body of deceased Athar Hussain Rind along with police letter for
postmortem and report. He produced the police letter at Ex. 08/A. The dead body
was identified by Ali Gul Rind grandfather of deceased and Ali Gulab Rind uncle
of deceased. He started the postmortem at about 8-00 pm and completed the same
at 9-00 pm on the same day. During the external appearance, he find that a dead
body of deceased an average built lying sine position on a cot wearing Badami
color shirt shalwar and green towel, postmortem lividity and rigor mortis
positive. From the external appearance, he find following injuries on the
person of dead body.
One firearm lacerated type of
penetrating wound size 1/5 cm x 1.5 cm x cavity deep averted margin (wound of
entry) at lover part of left side of abdomen circular in shape pass through and
through at left buttock 2 cm x 2 cm with averted margin circular in shape (exit
wound) (pistol).
Scalp, skull and vertebrae noting any
significant, membrane, brain, spinal card intact. Thorax. Walls, ribs and
cartilages healthy, pleurae healthy, larynx and trachea healthy, right and left
lungs healthy, pericardium and heart healthy. Blood vessels ruptured at the
site of injury. Walle ruptured left side, peritoneum ruptured left side, mouth,
pharynx and esophagus healthy, diaphragm healthy, stomach and its contents
contains digested food, pancreas contains secretary juices, small intestine and
the contents ruptured urinic digest food along with food, large intestines and
their contain fecal matter. Liver healthy, spleen healthy, kidneys healthy,
bladder contains few cc of urine. Organs of generation external and internal,
healthy. From the external as well as
internal examination of deceased, he opined that death of deceased has occurred
due to shock and hemorrhage, resulted with firearm injury (pistol). The time
between injury and death within 10 to 20 minutes and time between death and
post mortem was about one hour. After the post mortem, he issued such
postmortem report, which he produced at Ex.08/A, thus, this also corroborates
the ocular testimony furnished by the complainant and eyewitnesses. The
reliance is placed upon the case of Zahoor Ahmed Vs. The State (2017 SCMR 1662),
wherein the Honourable Supreme
Court of Pakistan has held that:
“4. The ocular account,
in this case, consists of Muhammad Khan complainant (PW-06) and Shahbaz
(PW-07). They gave the specific reasons of
their presence at the place of occurrence as, according to them, they alongwith the deceased
were proceeding to harvest the sugarcane crop. Although they are related to the
deceased they have no previous enmity or ill-will against the appellant and
they cannot be termed as interested witnesses in the absence of any previous
enmity. They remained consistent on each
and every material point. The minor discrepancies pointed out by the learned
counsel are not helpful to the defense because with the passage of time such discrepancies are bound to occur. The occurrence
took place in broad day light and both
parties knew each other so there was no mistaken identity and in absence of any
previous enmity, there could be no
substitution by letting off the real culprit specially
when the appellant alone was responsible for the murder of the deceased. The
evidence of two eyewitnesses was
consistent, truthful and confidence inspiring. The medical evidence fully
supports the ocular account so far the injuries received by the deceased, time
which lapse between the injury and death and between death and postmortem. Both
the Courts below have rightly convicted the appellant under section 302(b),
PPC.
13. Circumstantial evidence, in a murder case, should
be like a well-knit chain, one end of which touches the dead body of the
deceased and the other the neck of the accused. No link in chain of the
circumstances should be broken and the circumstances should be such as cannot
be explained away on any reasonable hypothesis other than guilt of accused
person. The
Investigating Officer SIP Qalandar Bux was also
examined by the prosecution, who in his evidence has deposed that on 10-08-2011
he was posted as Sub-Inspector/SIO
at police Station Mirwah. On the same day he had received FIR of Crime No.
219/2011 offence U/S 302 PPC along with other
police papers for further investigation. On 11-08-2011 he had recorded
statements U/S 161 CrPC of PWs. On 10-08-2011 he wrote a letter to SSP
Khairpur for getting permission about sending the property to expert
for opinion, so also wrote a letter to Mukhtiarkar for preparation of site
plan/sketch. He produced both letters as Ex. 14/A & B respectively. On
16-08-2011 he left
police station vide entry No. 08 at 1300 hours for the investigation
purpose. He produced such entry at Ex. 14/C. PC Sadoro Khan and PC Jinsar
Ali were with him in private car and when they reached in village
Jhoonjhan, where he received information that wanted accused Ghulam Akbar
is available at Siyal curve and waiting for transport. They reached at
Sabar Rind School, where two private persons namely Imtiaz Hussain
and Fida Hussain were available and they took them and then reached at the
pointed place where one suspected person was available. They alighted from car,
encircled
the accused and caught hold to him. On enquiry, the apprehended persons
disclosed his name as
Ghulam Akbar Rind. He was wanted in Crime No. 219/2011. During his personal search he recovered one
unlicensed TT pistol of 30 bore from right side fold of his shalwar with
magazine. He unloaded the pistol and found that three live bullets were
lying in the magazine. He had prepared such mashirnama of arrest and
recovery of mashirs Fida Hussain and Imtiaz Hussain. He produced such
mashirnama of arrest and recovery in presence
of mashirs Fida Hussain and Imtiaz Hussain, which
he produced at Ex. 14/D, it is
same, correct and bears his signature. He sealed the property at the spot. Accused could not
produce license of pistol before him. Accused also disclosed that he has
used the pistol in the commission of offence. Thereafter they brought the
accused and case property police station, where got entered entry No. 18 at 1630
hours. He produced such entry at 14/E. Then he lodged the FIR against the
accused on behalf of the State u/s
13 (d) Arms Ordinance Crime
No. 226/2011. He received the reports of Chemical examiner
which he produced at Ex. 14/F.
After completion of investigation, he submitted
the challan before the court having jurisdiction. Accused and
case property present in the Court are same.
14. The appellant named above in
his statement recorded under section 342 Cr.P.C denied the allegations levelled
against him by stating that he is innocent and prayed for justice. He produced Primary
School Leaving Certificate issued by Govt. Boys Primary School Anwarabad. However, he did
not opt to examine himself on oath but examined DW Mujahid Shah as defense
witness. The accused persons have took plea that they have falsely been
involved in this case due to dispute with complainant over landed property.
15. I would mention here that the deceased was the real nephew of the
complainant, normally the possibility of substitution of accused become rare by
leaving the actual persons and involving other persons, thus no material has
been brought on record by the appellant to show the deep-rooted enmity existed
earlier between the parties, which could have been the reason for his false
involvement in this case. Reliance in this respect is placed in the case of Lal Khan v. State (2006SCMR 1846) Farooque Khan v. The State (2008 SCMR
917), Zulfiqar Ahmed and others v.The State (2011 SCMR 492) so also
case of Zahoor Ahmed v. The State (2007
SCMR 1519) wherein Hon’ble Apex Court discussed as under:-
6. The
petitioner is a maternal-cousin of the deceased, so also the first cousin of
the deceased through paternal line of relationship and thus, in the light of
the entire evidence it has correctly been concluded by the learned High court
that the blood relation would not spare the real culprit and instead would
involve an innocent person in the case. Further, it has rightly been observed
that it was not essential for the prosecution to produce each of the cited
witnesses at the trial.
16. Considering
the above facts and circumstances, I have concluded that the prosecution has
successfully established its case against appellant Ghulam Akbar Rind through
ocular account furnished by the complainant and witnesses which is corroborated
by the medical evidence coupled with circumstantial evidence. Learned counsel
for appellant has failed to point out any material irregularly or serious
infirmity committed by the learned trial Court while passing the impugned
judgment which in my humble view is based upon proper appreciation of evidence
and same does not call for any interference of this Court. Thus, the
conviction awarded to the present appellant by learned trial Court is hereby
maintained and the instant Crl. Appeal filed by the appellant merits no
consideration, which is dismissed accordingly.The
case law relied upon by the learned counsel for the appellants is not
applicable in the case in hand as the facts and circumstances of the present
case are quite different from the cited case.
JUDGE
Nasim/P.A