IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

 

Before:

       Mr. Justice Adnan Iqbal Chaudhry,

       Mr. Justice Zulfiqar Ali Sangi,

 

(Criminal Jail Appeal No.D-30 of 2019)

Crl.Conf.No.D-12 of 2019

 

Appellant              :           Hubdar s/o Faiz Muhammad Gurgaij,

Through Mr.Abdul Rehman A.Bhutto, Advocate

Complainant        :         Ghulam Mustafa s/o Sahib Khan Kharal

                                       Through Mr.Athar Abbas Solangi, Advocate

The State              :         Through Mr.Ali Anwar Kandhro, Addl.P.G

 

(Criminal Jail Appeal No.D-31 of 2019)

 

Appellant              :           Muhammad Ali s/o Mashooque Soomro,                                 Through Mr.Asif Ali Abdul Razzak Soomro,                        Advocate

 

The State              :         Through Mr.Ali Anwar Kandhro, Addl.P.G

Date of hearing     :         01-02-2023

Date of decision    :         15-03-2023

JUDGMENT

ZULFIQAR ALI SANGI, J:- The above listed criminal jail appeals are directed against the judgment dated 22.06.2019, passed by learned 1st Additional Sessions Judge/MCTC, Kamber, in Sessions Case No.532/2013 (Re. St. Vs. Hubdar and others), emanating from FIR bearing Crime No.29/2012, for offence punishable under Section 302, 324, 114, 148, 149 PPC registered with Police Station, Warrah, whereby the appellants have been convicted for an offence U/S.302(b) PPC and sentenced to death as Tazir with compensation of Rs.5,00,000/- each to be paid to the legal heirs of deceased and in default whereof, to suffer simple imprisonment for six months. They both are also sentenced to one year R.I for offence U/S.148 PPC.

2.       Succinctly, the facts of case as depicted in FIR lodged by complainant Ghulam Mustafa s/o Sahib Khan on 06.04.2012, at 1000 hours, are to the effect that he is farmer and about a year ago, there was matrimonial dispute between him and Muhammad Allam Gurgaij party which was resolved by the Nekmards and despite that they used to remain annoyed with the complainant and asked to account for it. On the eventful day, the complainant alongwith his sons Yaseen, Imran Kharal, brother Manzoor Ali and relative Muhammad Pinjal Kharal came on a donkey-cart to Warrah Town with some work. At about 09.30 A.M, they saw accused namely Hubdar, 2). Muhammad Allam, both sons of Faiz Muhammad Gurgaij Chandia, 3). Muhammad Ali s/o Mashooque Soomro, 4). Manzoor son of Muhammad Lashari and one unknown culprit, all duly armed with pistols came ahead of them. Of them, accused Muhammad Allam instigated rest of the accused to take and do not spare Yaseen. On his instigation, accused Hubdar made pistol shot at Yaseen hitting him on his chest near nipple, accused Muhammad Ali and Manzoor also made pistol shots at Yaseen hitting him over his left flank and he fell down raising cries. The complainant party then raised cries of murder murder whereupon accused Muhammad Allam and unknown person made pistol shots at them which did not hit them. Thereafter, all the accused went away towards town side. The complainant then saw and found his son writhing with bleeding and immediately shifted him to casualty ward but he succumbed to injuries. Leaving above witnesses over the dead body, the complainant came at police station and reported the incident.

3.   On completion of investigation, the police submitted final report under section 173 Cr.PC against accused before the Court of concerned Judicial Magistrate. After completing legal formalities, the formal charge was framed by the learned trial Court against accused Hubdar Ali, Fido @ Fida Hussain and Muhammad Ali, to which they pleaded not guilty and claimed trial.

4.    In order to establish accusation against the accused, the prosecution examined in all nine witnesses i.e PW-01 Corpse bearer PC Zulfiqar Ali, PW-02 Complainant Ghulam Mustafa, PW-03 Eye-witness Manzoor Ali Kharal, PW-04 Eye-witness Muhammad Pinjal Kharal, PW-05 Mashir Sikandar Ali Kharal, PW-06 Tapedar Khawar Hussain, PW-07 Medical officer Dr.Jalaluddin Magsi, PW-08 Author/SIO/Inspector Javed Ali Shaikh and PW-09 ASI Manzoor Hussain Mirjat who all produced relevant documents in support of their statements. Thereafter, learned State counsel closed his side.

5.       The accused in their statements recorded in terms of Section 342 Cr.PC denied the allegations leveled against them by pleading their innocence and thus prayed for justice. However, they neither examined themselves on oath in disproof of the charge nor led any evidence in defence except appellant Muhammad Ali who examined DWs Ghulam Shabir, Muhammad Mureed and Mashooque Ali as witnesses in his defence.

6.      The learned trial Court on evaluation of the material brought on record and hearing counsel for the parties convicted and sentenced the present appellants/accused while acquitted co-accused Fido @ Fida Hussain vide impugned judgment, as discussed above.

7.      Per learned defence counsels, there are material contradictions in the evidence of prosecution witnesses which have shattered veracity of their evidence; that the complainant and PWs being related inter-se are interested witnesses and their evidence has no credibility, as such the same cannot be relied upon without independent corroboration; that there is conflict in between the ocular and medical account; that the prosecution has failed to prove motive; that the licensed pistol of Hubdar has malafidely been foisted upon him at the behest of complainant party in order to strengthen the case. To sum up their contentions, learned defence counsels submitted that present appellants have been arraigned in this case on account of matrimonial dispute which is discernible from the narration given in FIR itself. They concluded that the case of prosecution is doubtful and appellants are entitled to acquittal in the circumstances of case. Without prejudice to that they contend that if the Court is not convinced and concludes that the prosecution has proved the motive, which otherwise was attributed only to co-accused Muhammad Allam and had not even been proved, the sentence awarded to the appellants may be reduced from death to life.

8.    Conversely, learned counsel for the complainant by supporting the impugned judgment contended that all the witnesses have fully supported the case of prosecution and no any major contradiction has been noticed in their evidence; that an innocent boy of young age has been done to death at the hands of appellants/accused over the pretext of matrimonial dispute; that the ocular evidence is consistent with medical as well circumstantial account; that recovery of empties from the venue of occurrence and that of crime weapon from the possession of one of the appellants/accused on forensic analysis has substantiated their involvement in commission of the offence; that the chemical examiner’s and FSL reports have fully supported the case of prosecution, therefore, the learned trial Court finding the appellants/accused guilty of murder of deceased has rightly convicted and sentenced them to death by way of impugned judgment which is based upon sound reasoning and it does not call for any interference by this Court, hence, the criminal jail appeals filed by the appellants/accused being meritless are liable to its dismissal.

9.       Learned D.P.G for the State while opposing acquittal conceded alternate argument of learned counsels for the appellants/accused and raised no objection if the death sentence awarded to them is converted into imprisonment for life, as according to him though the complainant party asserted the motive, but the same has not been proved.

10.    We have given due consideration to the arguments advanced by learned counsel for the parties and have minutely gone through the material made available on record including the case law cited at bar with their able assistance.

11.     To establish the ocular account, the prosecution examined complainant Ghulam Mustafa (Exh.09), PW/Eye-witnesses Manzoor Ali and Muhammad Pinjal Kharal (Exh.10 & 11) who have supported the prosecution case and deposed that on the eventful day i.e 06.04.2012, at about 08.30 A.M, they alongwith Yaseen (complainant’s son/deceased) left village on donkey-cart and then arrived at Bareja Muhalla Warrah town where at about 09.30 A.M, they saw in  a public street near transformer five armed persons who were identified to be Hubdar, Muhammad Allam, Muhammad Ali, Manzoor Lashari, armed with pistols while the fifth was unknown. On instigation of accused Muhammad Allam, rest of the accused fired pistol shots at Yaseen hitting him on different parts of his body. Thereafter, accused Muhammad Allam and one unknown culprit who was subsequently identified to be Fida Hussain also fired at the complainant and his witnesses but they saved themselves by falling down on the ground and thereafter all the accused escaped towards Warrah town. They then immediately shifted the injured on donkey-cart to Taluka Hospital Warrah but he succumbed to injuries. Thereafter, the complainant lodged the FIR against the accused. It was further alleged by the complainant in the evidence that the police inspected the dead body of deceased at hospital and then visited the place of incident, secured blood stained earth and 04 empties of 30 bore pistol in presence of mashirs and subsequently he received the dead body of his son. Both the eye-witnesses further added that their 161 & 164 Cr.PC statements were recorded (former by police and the latter by concerned Magistrate). They all identified the accused present in Court to be same. All three eye-witnesses were cross-examined by learned defence counsel but no major contradiction was brought on record which may suggest that the appellants/accused were falsely implicated in a murder case of complainant’s son. 

12.     The ocular account furnished by above three eye-witnesses is further supported by the medical evidence. Dr.Jalaluddin Magsi in his evidence deposed that he conducted postmortem of deceased Yaseen and found the deceased having received 02 firearm injuries on chest and abdomen and as per his opinion, all the injuries were anti-mortem in nature and were caused by discharge from firearm. The death of deceased occurred due to shock and hemorrhage. It is observed that medical evidence is in the nature of supporting, confirmatory or explanatory of direct or circumstantial evidence, and is not “corroborative evidence” in sense the term is used in legal parlance for a piece of evidence that itself also has some probative force to connect the accused person with commission of the offence. Medical evidence itself does not throw any light over the identity of offender. Such evidence may confirm the available substantive evidence concerning certain facts including the seat of injury, nature of injury, cause of death, kind of weapon used in the occurrence, duration between injuries but it does not connect accused with commission of the offence. It cannot constitute corroboration for proving involvement of accused in commission of the offence, as it does not establish identity of the accused. Reliance can be placed on cases of Yaqoob Shah v. State (PLD 1976 SC 53); Machia v. State (PLD 1976 SC 695); Muhammad Iqbal v. Abid Hussain (1994 SCMR 1928); Mehmood Ahmad v. State (1995 SCMR 127); Muhammad Sharif v. State (1997 SCMR 866); Dildar Hussain v. Muhammad Afzaal (PLD 2004 SC 663); Iftikhar Hussain v. State (2004 SCMR 1185); Sikandar v. State (2006 SCMR 1786); Ghulam Murtaza v. Muhammad Akram (2007 SCMR 1549); Altaf Hussain v. Fakhar Hussain (2008 SCMR 1103) and Hashim Qasim v. State (2017 SCMR 986). In the case in hand, from the medical evidence produced by the prosecution it established that the death was caused due to discharge from firearm weapon which is fully supportive to the ocular account furnished by the prosecution. Here, the contention of learned defence counsel that there is conflict in between ocular and medical accounts, as present appellant Muhammad Ali and co-accused Manzoor Lashari (died during trial) were alleged to have fired separately at the deceased on his abdomen but it has not been established beyond doubt as to whose fire-shot proved fatal, in that situation, the contention with regard to acquittal of the appellants carries no force, as all the witnesses have unanimously deposed that the appellants have actively/conjointly participated in commission of the offence by firing at the deceased which is further corroborated by medical account coupled with recovery of empties from the venue of occurrence and recovery of weapon from appellant Hubdar with positive reports of Chemical Examiner as well as Ballistic Expert. In case of Muhammad Riaz and another V. The State and another (2007 SCMR 1413), the Hon’ble Supreme Court has held as under:-

6. A glance at the particulars of injuries would clearly show that these injuries were caused from some distance. In the ordinary course of events, it would thus, be difficult to ascertain as to which of the injuries was caused by which of the appellants. Even one of the injuries could have been caused by the fire attributed to co-accused Abdul Khaliq who stands acquitted at the trial and is, no longer available before this Court in the present appeal and petition for leave to appeal. The Medical Officer has pointed out that both injuries were sufficient to cause death in the ordinary course of nature, It would thus, mean that both the injuries were individually and collectively sufficient in the ordinary course' of nature to cause the death of the deceased. During the course of cross-examination, Medico-Legal Expert did not deny the possibility that both the injuries on the person of the deceased could be the result of a single fire. Since it is very difficult and not easily ascertainable as to which of the accused out of three assailants was responsible for causing these injuries, discretion in the matter of sentence exercised by the trial Court in our considered view does not suffer from perversity or any arbitrariness.

13.     In the present case, three eye-witnesses have fully supported the case as has been discussed above. However, the sole evidence of a material witness i.e an eyewitness is always sufficient to establish guilt of the accused if the same is confidence-inspiring and trustworthy and supported by other independent source of evidence because the law considers quality of evidence and not its quantity to prove the charge. The accused can be convicted if the Court finds direct oral evidence of one eye-witness to be reliable, trustworthy and confidence-inspiring. In this respect, reliance is placed on cases of Muhammad Ehsan v. The State (2006 SCMR 1857) and Niaz-Ud-Din v. The State (2011 SCMR 725). Further, the Honourable Supreme Court in case of Allah Bakhsh v. Shammi and others (PLD 1980 SC 225) also held that "even in murder case conviction can be based on the testimony of a single witness, if the Court is satisfied that he is reliable." There can be no denial to the legally established principle of law that it is always the direct evidence which is material to decide a fact (charge). The failure of direct evidence is always sufficient to hold a criminal charge as ‘not proved’ but where direct evidence holds the field and stands the test of it 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 can safely be placed on case of Muhammad Ehsan vs. the State (2006 SCMR 1857), wherein the Honourable Supreme Court of Pakistan 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”.

 

14.     The ocular evidence being supportive with medical evidence is further corroborated by the evidence of duty officer Inspector/SHO Javed Ali Shaikh who registered FIR of the complainant and then conducted investigation of the case. He deposed that on 06.04.2012 while posted as SHO at P.S Warrah, complainant Ghulam Mustafa Kharal came and narrated the facts of cognizable offence of murder of his son Yaseen, as such he lodged his FIR as per his verbatim and after reading over its contents then obtained his signature thereupon. Thereafter, he investigated the case and during course whereof, he alongwith complainant left police station and proceeded to Civil Hospital Warrah where inspected dead body of Yaseen Kharal in presence of mashirs Ghulam Nabi and Sikandar Kharal with preparation of memo of inspection of dead body, Danistnama and inquest report, thereafter, he inspected the place of incident with recovery of blood stained earth and empties and prepared such memo in presence of same mashirs. He then recorded 161 Cr.PC statements of PWs. Subsequently, on receipt of information, he left police station alongwith his subordinates and then arrested both the present appellants/accused from graveyard and secured a T.T pistol with magazine containing bullets from possession of accused Hubdar, together with license book of pistol and cash of Rs.170/- from accused Muhammad Ali and then prepared such memo in presence of same mashirs. He then produced the eye-witnesses before Court of learned Judicial Magistrate Warrah for recording their 164 Cr.PC statements and then dispatched the blood stained earth to Chemical Laboratory Sukkur @ Rohri for chemical analysis. On his transfer, he handed over the case papers to Inspector Zulfiqar Ali Khuhawar for further investigation. His evidence has further been endorsed corroborated by PW Sikandar Ali Kharal (Mashir). Both these witnesses were cross-examined by learned defence counsel but could not find any substance favourable to the appellants/accused.

15.     Learned counsels for appellants/accused mainly focused on the point that the witnesses are close relatives to the deceased and are interested, therefore, their evidence cannot be relied upon. The contention raised in this regard carries no force as in the instant matter, the eye-witnesses have sufficiently explained the date, time and place of incident as well as each and every event of the occurrence. It is observed that where the witnesses fall within the category of natural witnesses and detailed the manner of the incident in a confidence-inspiring manner then only escape available with the accused is that to satisfactorily establish that witnesses are not the witnesses of truth but “interested” one. An interested witness is not the one who is relative or friend but is the one who has a motive to falsely implicate an accused. Mere relationship of eye-witnesses with the deceased alone is not enough to discard testimony of the complainant and his witnesses. In matters of capital punishment, the accused would not stand absolved by making a mere allegation of dispute/enmity but would require to bring on record evidence that there had been such a dispute/enmity which could be believed to have motivated the “natural witnesses” in involving innocent at the cost of escape of “real culprits”. In case of Zulfiqar Ahmed & another v. State (2011 SCMR 492), the Supreme Court of Pakistan 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”.

 

16.     Although, learned counsels for the appellants/accused had pointed out some minor contradictions in the evidence which in our view are not sufficient to discard evidence of the eye-witnesses who have fully supported the case of prosecution on each aspect. It is settled principal of law that where in the evidence, the prosecution established its case beyond reasonable doubt then if there arise some minor contradictions which always are available in each and every case as no one can give evidence like a pen-picture, hence the same are to be ignored. The reliance is placed on case of Zakir Khan V. The State (1995 SCMR 1793), wherein the Supreme Court of Pakistan has held 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.”

17.               Turning to the motive of the incident, no doubt, the previous enmity over the matrimonial dispute is alleged by the complainant to have been made basis in the present case but no tangible piece of evidence has been brought on record by the prosecution to justify the claim of complainant. In that situation, the motive yet remains questionable. It is observed that the complainant asserted motive in the FIR to be of matrimonial dispute against        co-accused Muhammad Allam but it was not investigated properly by the investigation officer nor he formed any opinion in such regard in his report submitted under Section 173 Cr.PC. During trial, the complainant party also remained on same footing as they were at the time of FIR and its investigation. The prosecution has also failed to prove motive by not producing any reliable evidence as to when such dispute arose, in between whom and in whose presence the threats of dire consequences were issued which obviously suggested that the motive was shrouded in mystery. The statements of appellants were recorded before learned trial Court under Section 342, Cr.PC wherein no question regarding the motive was put to them for their explanation but it was used against them by learned trial Court for awarding death sentence. It is settled principle of the law that any piece of evidence not put to the accused at the time of recording his/their statement under Section 342 Cr.P.C, could not be considered against him/them and failure on the part of the prosecution to establish the motive may react upon a sentence of death as held by the Honourable Apex Court in case of Qaddan and others v. The State (2017 SCMR-148), wherein it was held as under;-

3. We have noticed that before the High Court the only prayer made by the learned counsel for the appellants was that in view of some peculiar circumstances of this case the sentences of death passed against the appellants may be reduced to imprisonment for life and, thus, we have confined our consideration of this case only to the issue of mitigation of the appellants' sentences of death. In this context it has straightaway been noticed by us that according to the FIR as well as the statements of the eye-witnesses made before the trial court the appellants and the other members of the accused party had come armed and had gone into the house of one Ali Sher Brohi quite peacefully and it was the complainant party which had provoked the accused party at the spot which provocation had led to the present occurrence. It is, thus, obvious that but for the intervention and provocation of the complainant party the present occurrence might not have taken place at all. We have further observed that one lady died and three others had received injuries during the occurrence in issue which also indicates that the occurrence in question had developed at the spur of the moment without any premeditation and that different members of the accused party as well as of the complainant party embroiled with each other in a developing occurrence. Apart from that the motive set up by the prosecution had never been put to the present appellants at the time of recording of their statements under section 342, Cr.P.C. The law is settled that a piece of evidence not put to an accused person at the time of recording of his statement under section 342, Cr.P.C. cannot be considered against him. The alleged recovery of the weapons of offence from the appellants during the investigation had been discarded by the High Court. The criminal case in hand had originated in the year 1989 and the appellants have already spent more than 16 years in jail in connection with this case. All these factors available on the record do make out a case for reduction of the appellants' sentences of death to imprisonment for life and particularly the motive part of this case going out of consideration because of its not having been put to the appellants at the time of recording of their statements under section 342, Cr.P.C. brings into operation the settled principle that failure on the part of the prosecution to establish the motive may react upon a sentence of death and a reference in this respect may be made to the cases of Ahmad Nawaz v. The State (2011 SCMR 593), Iftikhar Mehmood and another v. Qaiser Iftikhar and others (2011 SCMR 1165), Muhammad Mumtaz v.The State and another (2012 SCMR 267), Muhammad Imran @ Asif v.The State (2013 SCMR 782), Sabir Hussain alias Sabri, v.The State (2013 SCMR 1554), Zeeshan Afzal alias Shani and another v.The State and another (2013 SCMR 1602), Naveed alias Needu and others v.The State and others (2014 SCMR 1464) and Muhammad Nadeem Waqas and another v.The State (2014 SCMR 1658). This appeal is, therefore, dismissed to the extent of the convictions and sentences of Qaddan, Rajib and Esso appellants except to the extent of their sentences of death on all the counts of the charge under section 302(b), P.P.C. read with section 149, P.P.C. which sentences of death are reduced to imprisonment for life on each such count of the charge. All the sentences of imprisonment passed against the said appellants shall run concurrently to each other and the benefit under section 382-B, Cr.P.C. shall be extended to them. This appeal is disposed of in these terms.

 

 

          In another case of Muhammad Akram alias Akri (2019 SCMR-610), the death sentence awarded to the accused was converted with imprisonment for life by Hon’ble Apex Court by making observation that;

“Having concluded so, it has been observed by us that a specific motive was set out by the complainant in the FIR and in his statement recorded before the trial court in-as-much-as four days prior to the occurrence, appellant along with his vagabond friends had come and stood in front of the house of the complainant. Muhammad Riaz (deceased) had reprimanded the appellant, whereupon an altercation took place between the two. The appellant had threatened the deceased Muhammad Riaz of dire consequences and on account of this grudge, the appellant committed the crime. In his cross-examination, the complainant Fiaz Ali admitted that he had never reported to police that appellant along with his vagabond friends used to come and stand in front of their house. There is also nothing on record to prove that the incidence of altercation between appellant and deceased was ever reported to police. The complainant also did not disclose the names of vagabond friends of the appellant who used to come and stand in front of the house of the complainant. It appears that the real cause of the occurrence has not been disclosed by either of the sides. In these circumstances, we are of the view that the motive set out by the prosecution remained far from being proved. It is well settled that when prosecution alleges something against an accused person and then fails to prove the same, the premium of such failure must go to an accused person. In this case as well, prosecution's failure to prove the motive set out by it certainly benefits the appellant.

The conviction of the appellant under section 302(b), P.P.C. is maintained but his sentence of death is converted into imprisonment for life.

18.       For what has been discussed above and while relying upon case laws (supra) we are of the unanimous view that the prosecution has successfully proved its case against the appellants, therefore, the appeals filed by them are dismissed to the extent of their conviction but the same are partly allowed by reducing the sentence from death to life, with benefit of Section 382(b) Cr.PC. The compensation so awarded by learned trial Court to be payable to legal heirs of the deceased shall remain intact and in default whereof, the appellants shall suffer S.I for six months each. The sentence awarded by learned trial Court for offence U/S.148 PPC is also maintained. Resultantly, the reference for confirmation of death sentence made by learned trial Court is answered in “Negative”.

19.       The instant criminal jail appeals and reference are disposed of accordingly.               

    JUDGE

                                     JUDGE  

 

         .