IN THE HIGH COURT OF SINDH, CIRCUIT COURT,
LARKANA
Crl. Jail Appeal No. D- 32 of 2019.
Crl. Confirmation Case No. D- 13 of 2019.
Present:
Mr. Justice Omar Sial.
Mr. Justice Abdul Mobeen Lakho.
Appellant: Saddam Hussain son of Ghulam Abbas Lohar, through Mr. Habibullah G. Ghouri, Advocate.
Respondent: The State, through Mr. Ali Anwar Kandhro, Additional Prosecutor General.
Dates of hearing: 02.09.2021.
JUDGMENT
Abdul Mobeen Lakho, J. This common judgment would dispose of the above captioned Criminal Appeal and Criminal Confirmation Reference/ Case.
2. Through Crl. Jail Appeal No. D- 32 of 2019, appellant Saddam Hussain son of Ghulam Abbas Lohar has questioned the judgment dated 25.06.2019, passed by learned Sessions Judge, Jacobabad, in Sessions Case No.338/2016, re; State v. Saddam Hussain, arising out of crime No.06/2016 of P.S Civil Line, Jacobabad, whereby the appellant was convicted and sentenced as under:
(i) For offence under Section 302 (b) P.P.C; he has been sentenced to “death” as “Ta’zir”, to be hanged from neck till he died and to pay compensation of Rs.100,000/- to other legal heirs of the deceased, except the appellant and in case of default thereof, shall suffer S.I for six months more.
(ii) For offence under Section 324 P.P.C, he has been sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs.20,000/- and in default of payment of fine, to undergo simple imprisonment for three months more.
(iii) For offence under Section 353 P.P.C, he has been sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.5000/- and in default of payment of fine, to undergo simple imprisonment for fifteen days more.
3. It was further directed by the learned trial Court that the convictions and sentences for offences under Sections 324 and 353 P.P.C shall run concurrently. However benefit of section 382 (b) Cr.P.C. was extended to the appellant.
4. Whereas, criminal confirmation Case No. D- 13 of 2019 has been made by the learned trial Court for confirmation of death-sentence.
5. The prosecution story, as depicted from para 2 of the impugned judgment, reads as under:
“The facts in brief of the prosecution as unfolded in the F.I.R No.06/2016 P.S Civil Line Jacobabad lodged by complainant Azhar Abbas on 30.01.2016 at 2030 hours are that on the same date at about 0730 hours, on account of dispute arising over engagement of his sister Ruqia, the accused (appellant) Saddam Hussain fired from his T.T pistol upon Mst. Ruqia, the sister of the accused, which hit her and she died and the accused ran away, but the complainant informed the police on patrolling through cell phone and the police party of P.S Civil Line Jacobabad, headed by Head constable Altaf Ahmed tried to apprehend the accused, but he fired upon police party with intention to commit murder and the police party retaliated the firing and after encounter arrested the accused alongwith crime weapon viz. T.T pistol. Ultimately, the complainant lodged the F.I.R.”
6. The investigating agency after usual investigation filed challan of the case and the learned trial Court framed the charge against appellant, to which he pleaded not guilty and claimed trial. As such, the prosecution examined P.W-1 complainant Azhar Abbas, PW-2 Mst. Zainab (who are eyewitnesses of the incident). PW-3 Women Medical Officer Dr. Romana who conducted postmortem of dead body of the deceased. PW-4 Tapedar of the beat Kamil Khan who produced on record the sketch of place of incident. PW-5 Darya Khan who acted as mashir. PW-6 Head constable Shadi Khan, he also acted as Mashir of arrest and recovery. PW-7 Zaheer Ahmed; he is eyewitness of the case and also acted as mashir of arrest, recovery of crime weapon, inspection of dead body of deceased recovery of last worn blood stained cloths of deceased. PW-8 ASI Ali Murad, who inspected the place of vardat, dead body of deceased, secured blood stained earth and recovered empty from place of vardat under mashirnama; he had also recorded statements of eyewitnesses under Section 161 Cr.P.C. PW-9 Muhammad Altaf and PW-10 Constable Sagheer Ahmed, they both are members of police party, with whom the accused encountered after the incident. PW-11 Dr. Sadiq Ali who had examined appellant Saddam Hussain. The learned Prosecutor closed the side of prosecution vide his statement at Ex.20.
7. After close of side by the prosecution the statement of appellant was recorded in terms of Section 342 Cr.P.C., in which he denied the allegations of the prosecution leveled against him and claimed his innocence and false implication in this case by his brother (complainant) due to dispute over property, since he had demanded his share from him (complainant). However, neither, he examined himself on oath nor led any sort of evidence in his defense.
8. After hearing the parties, the trial Court passed the impugned judgment dated 25th June, 2019, thereby convicting and sentencing the appellant as above, who has filed the instant criminal appeal.
9. Learned counsel for the appellant has argued that the judgment of the trial Court is against the law, facts and equity and liable to be set-aside; that the trial Court has failed to appreciate the factual as well as legal aspects of the case while convicting the appellant. He next argued that the evidence adduced by the prosecution at the trial is not properly assessed and evaluated by the trial Court and the evidence is insufficient to warrant conviction of the appellants. He further added that no independent witness was examined and the witnesses examined at trial were interested being closely related to each other and they contradicted each other on very material points; that the prosecution case is full of material contradictions and discrepancies. He further contended that medical evidence, ocular evidence and motive is shrouded in mystery. Learned counsel further contended that the impugned judgment suffers from mis-reading and non-reading of evidence. Lastly, he contended that defence has created so many doubts in the prosecution case and benefit of which may be extended in favor of the appellant by setting-aside the impugned judgment and ordering acquittal of the appellant.
10. On the other hand, Mr. Ali Anwar Kandhro learned Additional Prosecutor General opposed the appeal and contended that that the evidence produced at trial is natural and confidence inspiring; that the F.I.R is promptly lodged and name of the appellant was mentioned in the F.I.R with specific role of causing firearm injury to the deceased, which resulted in her death, so also making murderous assault upon a police party and deterring them from performing their duty; that the incident and motive has been given in the F.I.R; and that eyewitnesses have fully supported case and ocular evidence is supported by medical evidence and there is also recovery of crime weapon from the possession of appellant with its positive FSL report. He further argued that the defence has failed to create dents in the prosecution case. No important material contradictions and discrepancies have been pointed out by the defence counsel. He further contended that prosecution has established its case beyond any shadow of doubt against the appellant and learned trial Court has rightly convicted the appellant. Lastly, he prayed for dismissal of the appeal.
11. We have heard learned counsel for appellant and learned D.P.G. appearing for the State and with their assistance have minutely and carefully scanned the evidence.
12. In order to prove unnatural death of deceased Mst. Rukiya, the prosecution examined Woman Medical Officer Dr. Romana, who conducted postmortem of deceased. She deposed that on 30.01.2016, she examined dead body of deceased Mst. Rukiya and found following injuries on her body:
(1) A lacerated punctured wound about ˝ cm in diameter situated above the left clavicular region with blackening and charring present (wound of entry).
(2) A lacerated punctured wound about 1 cm in diameter on left axillaries region with everted margins (wound of exit).
(3) A lacerated punctured wound about ˝ cm in diameter on palm of right hand with inverted margins, blackening and charring (wound of entry).
(4) A lacerated punctured wound about 1 cm in diameter on dorsal aspect of the right hand with everted margins (wound of exit).
13. The woman medical officer opined that death of deceased had occurred due to shock and hemorrhage and the injuries No.1 and 2 individually and injuries No.3 and 4 collectively were sufficient to cause death of deceased in normal course of life; all the injuries were ante-mortem in nature and were caused by discharge from firearm and the probable time between injuries and death was instantaneous and the time between death and postmortem was about three hours. Unnatural death of deceased Mst. Rukiya has not been disputed or challenged by the defence counsel and thus we hold that deceased Mst. Rukiya died an unnatural death due to firearm injuries. The findings of the trial Court to this effect does not require any interference.
14. Now it is to be seen whether the prosecution has successfully brought home the guilt of the appellant for committing qatl-e-amd of deceased Mst. Rukiya and made murderous assault by using criminal force to police patrolling party being public servants in execution of their official duty. In this context, the prosecution in order to prove its case relied upon evidence of eyewitnesses, namely, complainant Azhar Abbas, PWs Zaheer Ahmed, Mst. Zainab, ASI Muhammad Altaf and Constable Sagheer Ahmed. We have scrutinized the evidence of these eye witnesses carefully. Complainant Azhar Abbas (Ex.4) deposed that deceased Rukiya aged about 16-17 years was his sister. Accused-appellant Saddam Hussain is also his real brother. About 1 ˝ months prior to registration of F.I.R, they solemnized engagement ceremony of his sister Rukiya with one relative namely, Mansab; on which accused-appellant Saddam Hussain was annoyed and he was threatening that he will murder Rukiya. On 30.01.2016 at about 07-30 p.m. he, alongwith his sisters namely, deceased Rukiya, Zainab and brother Zaheer Abbas were sitting in their house situated at Railway Colony Jacobabad. It was about 07.30 p.m. accused Saddam Hussain duly armed with T.T pistol entered in the house and aimed his pistol upon them and chambered it. He threatened all of them to remain silent, meanwhile he directly fired upon deceased Rukiya, in result whereof, one bullet hit at her left side of neck and one bullet hit her on the palm of her right hand. She fell down and the complainant party attempted to apprehend accused but he was successful in fleeing from the house. Thereafter, he (complainant) called police through mobile phone and also followed the accused. After few minutes, one police mobile came and he alongwith police party chased the accused on which he directly fired upon them with intention to cause their murder. The police party encircled him and they apprehended him alongwith crime weapon. After the arrest and recovery, they took accused alongwith case property at police station where, he, registered FIR.
15. PW Mst. Zainab (Ex.5) deposed that deceased Rukiya was her real sister. Accused Saddam Hussain and Complainant Azhar Abbas are also her real brothers. She further deposed that, about 1 ˝ months prior to this incident they solemnized engagement ceremony of their deceased sister Rukiya with their relative namely, Mansab , on which accused Saddam Hussain was annoyed and he threatened to kill their sister and on 30.1.2016 at about 07-30 p.m. she, alongwith complainant Zaheer Ahmed and her deceased sister were sitting in our home, meanwhile their brother Saddam Hussain duly armed with T.T pistol came and aimed pistol upon them; he chambered the pistol and threatened them to keep quite and directly made two fire shots upon Rukiya, one fire shot hit at her left side of neck and other hit at her right palm, she fell down and thereafter accused fled away. They followed the accused and her brother Azhar Abbas (complainant) informed police through mobile phone and one police mobile came; her brother and police tried to apprehend accused, on which accused directly fired upon police party. The police encircled accused and apprehended him alongwith crime weapon. Thereafter, she went to look after her deceased sister at home and her brother registered the FIR at police station. She further deposed that her statement was recorded by the investigating officer.
16. PW ASI Muhammad Altaf (Ex.13) deposed that, 30.01.2016, he was posted as Head Constable at P.S Civil Line Jacobabad. On that day, he alongwith PCs Rasool Bux and Saghir Ahmed vide entry No.22/1840 hours, left Police station by police mobile for patrolling. During patrolling, they reached near the house of Azhar Abbasi Luhar, Railway Colony Jacobabad, where he received information by Azhar Abbas; who informed that his brother Saddam Husain Luhar has murdered his sister Rukiya and fled away. They stopped vehicle and got down and saw one person being armed with T.T Pistol came running towards them, who on seeing them being police party started straight firing upon them; they also fired in their defense. The encounter lasted for about 3/4 minutes, then they arrested accused alongwith pistol with the help of private persons Azhar Abbas (Complainant) and Zaheer Ahmed. They recovered pistol and came at police station alongwith accused and recovered property as well as private persons where complainant Azhar Abbas registered the FIR against accused Saddam Hussain.
17. PW/ Mashir P.C Sagheer Ahmad (Ex.14) deposed that on 30.01.2016, he was posted as Head Constable at P.S Civil Line Jacobabad. On that day, he alongwith PC Rasool Bux and HC Muhammad Altaf vide entry No.22/1840 hours, left P.S by police mobile for patrolling and during patrolling they reached near the house of Azhar Abbas Luhar, Railway Colony Jacobabad where they received information by Azhar Abbas, who informed that his brother Saddam Husain Luhar has murdered his sister Rukiya and fled away; they stopped vehicle and got down and saw one person being armed with TT Pistol came running towards them and on seeing them being police party he started straight firing upon them; they also fired in their defense; the encounter lasted for about 1/2 minutes; then they arrested accused alongwith pistol with the help of private persons Azhar Abbas and Zaheer Ahmed. They recovered pistol and came at police station alongwith accused and recovered property as well as private persons, where complainant Azhar Abbas registered the FIR against accused Saddam Hussain. He further deposed that on the same date, he received the dead body of deceased Mst. Rukiya for conducting post-mortem from medical officer. Thereafter, he, brought the dead body at Civil Hospital Jacobabad for conducting the post-mortem and after conducting the postmortem, he handed over the dead body and blood stained clothes to brother of deceased namely Azhar Abbas.
18. It is also case of prosecution that after committing murder of Mst. Rukiya, when accused-appellant was leaving the scene, he was confronted by a police party and was apprehended on the spot in injured condition after an encounter with police. In this regard, the prosecution has also examined Dr. Sadique Ali who had examined accused-appellant. Dr. Saddique Ali has deposed that on 30.01.2016 he was posted as Medical Officer at Civil Hospital, Jacobabad. On the same day he received injured Saddam Hussain Lohar (appellant) who was referred by SHO P.S Civil Line, Jacobabad for examination, treatment and certificate. He examined the injured and found three injures on his person i.e. on forehead, right knee joint just below laterally with its exit at just below the right knee joint medially.
19. It appears from the record that complainant Azhar Abbas, P.Ws Zaheer Ahmed, Mst. Zainab, deceased Mst. Rukiya and appellant Saddam Hussain happen to be brothers and sisters inter-se. It is case of the prosecution that, complainant settled marriage of his sister, namely, Mst. Rukiya with one of their relative Munsab, but appellant was not happy with this matrimony and he had threatened do away with Mst. Rukiya, as such on fateful night at about 07.30 p.m. the appellant came in the house with T.T pistol and made firing upon Mst. Rukiya within sight of above named inmates of the house. The complainant and witnesses tried to apprehend him, but he went out of the house; the complainant informed the police through cell phone and in the meantime the patrolling police consist of Head constable Muhammad Altaf, P.C Sagheer Ahmed, P.C Rasool Bux and H.C Arz Muhammad arrived at the place of incident; the appellant started firing upon police party and in retaliation the appellant was apprehended on the spot alongwith pistol in injured condition.
20. The incident consists upon two portions; first is the commission of murder of Mst. Rukiya inside the house, and second is an encounter by appellant with the police who apprehended him on spot alongwith pistol. The first episode was witnessed by complainant Azhar Abbas, his brohter Zaheer Ahmed and their sister Mst. Zainab, while second episode was witnessed by police personnel, namely, Head constable Muhammad Altaf, P.C Sagheer Ahmed, P.C Rasool Bux and H.C Arz Muhammad, besides complainant Azhar Abbas and Zaheer Ahmed.
21. Perusal of the mashirnama and sketch of the place of occurrence shows that the incident had taken place inside the house of the complainant party and F.I.R of the same had been lodged with promptitude wherein the appellant was nominated as the sole executor of the murder of his sister Mst. Rukiya, a young girl of 16/17 years of age. The ocular account of the incident had been furnished before the trial Court by three eye-witnesses, namely, Azhar Abbas (complainant), Zaheer Ahmed and Mst. Zainab (P.Ws), the brothers and sister of deceased, who all were residing in the same house with the deceased. These eye-witnesses are inmates of the house wherein the occurrence had taken place; hence, they are natural witnesses. Their evidence was found consistent straight and trustworthy which is sufficient to bring home the charge against the appellant. The learned counsel has failed to dispute the presence of the eye witnesses at the time of incident and we find this evidence to be reliable, trustworthy and confidence inspiring and believe the same as it support the medical evidence as discussed earlier. In a murder case conviction can be based on a trustworthy of a single witness if the Court is satisfied that the witness is reliable. In case of Niaz-u-ddin and another v. The State and another reported in 2011 SCMR 725, the on Supreme Court has held as under:
“The statement of Israeel (PW-9) the eye-witness of the occurrence is confidence inspiring, which stated substantiated from the circumstances and other evidence. There is apt observations appearing in Allah Bakhsh v. Shammi and others (PLD 1980 SC 225) that “even in a murder case conviction can be based on the testimony of a single witness, if the Court is satisfied that he is reliable.” The reason being that it is the quality of evidence and not the quantity which matters. Therefore, we are left with no doubt whatsoever that conviction of Niaz-ud-Din was fully justified and has rightly been maintained by the High Court.”
Admittedly, the appellant is the real brother of the above mentioned eye-witnesses as well as to the deceased therefore, question of mistaken identity does not arise, hence no need for identification parade. The second portion of the incident i.e. an encounter by appellant with police who apprehended him on spot alongwith pistol outside and adjacent to the house is also disclosed by police witnesses, namely, Head constable Muhammad Altaf and P.C Sagheer Ahmed in their statements recorded by learned trial Court. All the eye-witnesses named-above are unanimous on each and every point with regard to ocular account of the incident and their evidence being natural appears to be confidence inspiring and trustworthy. The learned counsel for the appellant has not been able to point-out any material contradictions in their evidence. On the other hand, there is a simple denial of the incident by appellant in his statement recorded under section 342 Cr.P.C., except simple plea of his false implication in the case due to demanding share by him in the ancestral landed property.
22. Though the learned counsel for the appellant pointed out some minor contradictions in the evidence of above eye witnesses. In this context, it is observed that minor contradictions/ omissions in the evidence of eye witnesses is natural phenomena and no importance can be attached to such minor contradictions.
23. The ocular evidence fully gets support from the medical evidence, i.e. evidence of Dr. Romana who conducted postmortem over dead body of deceased Mst. Rukiya, and confirmed the death of deceased as unnatural due to receipt of firearm injuries. The ocular version also gets support from evidence of Dr. Sadiq Ali, who had examined appellant Saddam Hussain and found injuries on his person. As, according to prosecution, the appellant had received injuries on his person during an attempt to escape from the scene of offence after commission of murder.
24. The case of prosecution also gets support from the circumstantial evidence in shape of recovery of crime weapon i.e. T.T pistol from possession of the appellant, which had been recovered from appellant just after some moments of the incident of murder, by a police party consist of Head constable Muhammad Altaf, P.C Sagheer Ahmed, P.C Rasool Bux and H.C Arz Muhammad after an encounter in presence of private mashirs, namely, Zaheer Ahmed and Imran Ali. Out of them, Muhammad Altaf, Zaheer Ahmed and P.C Sagheer Ahmed have fully supported prosecution case and they are also unanimous on the point of recovery of pistol from possession of appellant. There is also recovery of empties of 30-bore pistol from place of occurrence and blood stained mud and a FSL report in respect of such empties and blood stained mud is in positive.
25. After scrutinizing the evidence and impugned judgment, we are of the view that there is no misreading or non-reading of evidence by learned trial Court; as such no interference is required to the impugned judgment. However, there are some mitigating circumstances for awarding lesser sentence by converting it from “death” to “imprisonment for life. Firstly, that the appellant is of young age and secondly that he is closely related to the deceased as well as complainant and eyewitness and thirdly that the motive for the alleged incident was quite weak.
26. For what has been discussed above, this appeal is dismissed to the extent of the appellant’s conviction for the offence under Section 302(b) P.P.C but the same is partly allowed to the extent of his sentence of death, which is hereby reduced to imprisonment for life. The order passed by the learned trial Court regarding payment of compensation by the appellant to the heirs of the deceased as well as the order in respect of imprisonment in default of payment of compensation and sentences for offences under Section 324 and 353 P.P.C are maintained. The benefit under Section 382-B Cr.P.C is extended to the appellant.
27. The Crl. Jail Appeal No. D- 32 of 2019 is disposed of in these terms, while Crl. Confirmation Case No. D- 13 of 2019, is answered in negative.
Judge
Judge
Ansari