IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
CriminalJail Appeal No.S-41 of 2019
Appellant Imtiaz aliasShamanaliasShamoos/o Munwar Ali Abro
Through Mr. Irfan Badar Abbasi, Advocate.
Complainant: Muhammad Asghar s/o Muhammad SiddiqueAbro,
Through Mr. Shafqat Ali Jatoi, Advocate.
The State: Through Mr. Aitbar Ali Bullo, Deputy Prosecutor General, Sindh.
Date of hearing: 30.03.2023
Date of Judgment: 29.05.2023
JUDGMENT
ZULFIQAR ALI SANGI, J.:-Throughlisted Criminal Jail Appeal, the appellant impugns the Judgment dated 23.05.2019,passed by learned 1stAdditional Sessions Judge/MCTC, Jacobabad,in Sessions Case No.208/2014 (Re.State.Vs.Imtiaz alias Shaman alias Shamoo),emanating from FIR bearing Crime No.26/2014, for offence punishable U/S. 302, 34 PPC registered with Police Station,City Jacobabad,whereby he has been convicted for an offence punishable U/S.302(b)PPC and sentenced to suffer imprisonment for life as Tazir and to pay fine/compensation of Rs.500,000/- (Rupees Five Lacs) to be paid to the legal heirs of deceased and in default whereof to suffer simple imprisonment for one year more, with benefit of Section 382-B Cr.PC.
2. The concise facts as depicted in the FIR lodged by complainant Muhammad Asghar Abro on 15.03.2014 are to the effect that earlier an altercation took place between his nephew Muhammad Ishaque and one Imtiaz alias Shaman alias Shamoo whereupon said Imtiaz used to say that he will fight with them. On 13.03.2014, the complainant alongwith his brother Muhammad Yousif and nephew Muhammad Ishaque Abro were returning back from City to their houses, in the meantime, at about 09:30 p.m (night) when reached adjacent to Greenland hotel, they saw and identified accused namely Imtiaz @ Shaman @ Shamoo, 2). SaffaraliasAbay, both sons of Munwar Ali, 3).Arshad @ Banoo son of Abdul Ghafoor, all by caste Abro and one unknown culprit came from Beri-chowk side. The accused Imtiaz @ Shaman @ Shamoosaid that as Muhammad Ishaque has altercated with them, therefore, he will not be spared and will be done to death.Saying so, accused Imtiaz @ Shaman @ Shamoo took out dagger from fold of his shalwarwhile remaining accused caught hold of Muhammad Ishaque and then accused Imtiaz @ Shaman @ Shamooinflicted daggerinjuries twice at Muhammad Ishaque who while raising cries fell down and was bleeding, thereafter, all the accused fled away. The complainant party then saw Muhammad Ishaque having a dagger injury on his left side flank and other injury under his left armpit with bleeding. Thereafter, injured Muhammad Ishaque was immediately shifted to Civil Hospital, where City police arrived and issued such letter for treatment, wherefrom injured Muhammad Ishaque was referred to C.M.C Hospital, Larkana and the complainant reported the incident with P.S City Jacobabad by lodging FIR for offence punishable U/S. 324, 34 PPC. Subsequently, the complainant received telephonic message that injured Muhammad Ishaque succumbed the injuries at CMCH Larkana at 02:30 p.m, as such his deadbody was shifted to Civil Hospital, Jacobabad,for conducting postmortem and later it was handed over to the complainantfor funeral rituals.
3. After the usual investigation the case was challaned. The charge was framed against the appellant to whichhe pleaded not guilty and claimed trial.
4. To establish the accusation against the appellant/accused, the prosecution examined in all nine witnesses, who all produced certain relevant items and documents in support of their statements. Thereafter, learned State Counsel closed the side of prosecution.
5. Appellant/accused in his statement recorded in terms of Section 342 Cr.PC denied the allegations leveled against him by pleading his innocence stating therein that he has been implicated falsely by the police. He however, did not examine himself on oath in disproof of the charge nor led any evidence in his defence.
6. The learned trial Court on appraisal of the material brought on record and hearing counsel for the parties convicted and sentenced the present appellant/accused vide judgment, as detailed above.
7. Per learned defence counsel, the evidence of all the prosecution witnesses being contradictory have no credibility and thus cannot be relied upon without independent corroboration even there is no recovery of crime weapon from the present appellant. Summing up his contentions, the learned defence counsel submitted that the present accused has been arraigned in this case falsely on account of previous altercation, which is discernible from the averments of the FIR, as such the case of prosecution is doubtful and has no foundation against the appellant, therefore, he deserves to be acquitted in the circumstances of case. In support of his contentions, he relied upon casesreported as 2021 SCMR 23 (Ghulam Abbas and another v/s. The State and another), 2021 SCMR 736 (Najaf Ali Shah v/s.The State), 2020 SCMR 305 (Muhammad Ilyas and another v/s. Ameer Ali and another), 2018 SCMR 153 (Nadeem alias Kala v/s.The State and others), 2015 SCMR 315 (Pathan v/s.The State), 2008 SCMR 95 (Liaquat Ali v/s.The State), PLD 2002 Supreme Court 1048 (AyubMasih v/s.The State), 1995 SCMR 1345 (Tariq Pervez v/s.The State) and 2021 YLR Note 30 (GamanBangulani and 2 others v/s.The State).
8. Conversely, learned counsel for the complainant and learned Deputy Prosecutor General for the State while supporting the impugned judgment contended that all the witnesses have fully supported the case of prosecution and no major contradiction is noticed in their evidence, therefore, learned trial Court finding the appellant/accused guilty of the offence has rightly convicted and sentenced him, which requires no interference by this Court, therefore, the appeal filed by the appellant being devoid of merits is liable to its dismissal.
9. I have heard arguments of learned counsel for the parties and have minutely perused the material available on record with their able assistance.
10. To establish the ocular account, the prosecution examined two eye-witnesses of the incident namely complainant Muhammad Asghar and Muhammad Yousif, who being star/natural witnesses of the actual occurrence deposed unanimously in one voice that on 13.03.2014, theyalongwith Muhammad Ishaque were coming from Jacobabad city and were going to their house situated in Family Line Jacobabad and at about 09-30 p.m. when they reached Green Land Hotel Jacobabad, they saw that four persons came from Beri Chowk side. They identified out of them, accused Imtiaz @ Shaman, Arshad @ Bano, Saffar @ Abay and one accused was not known to them but they have seen him very well and they can identify him if seen again. On coming the accused namely Imtiaz issued threats that they will not spare Muhammad Ishaque and will commit his murder. On that three accused persons caught hold of his nephew Muhammad Ishaque while accused Imtiaz @ Shaman took out dagger from fold of his shalwar and gave dagger blows to his nephew Muhammad Ishaque on left side of his abdomen and under left side of arm pit. Thereafter they shifted the injured Muhammad Ishaque to Civil Hospital Jacobabad, where police also reached and inspected injuries of Muhammad Ishaque. The injured was then referred to Chandka Medical Hospital Larkana for treatment by the doctors of Civil Hospital Jacobabad, hence they took the injured Muhammad Ishaque to CMC Hospital Larkana and wherefrom complainant returned back on 15.3.2014 lodged such FIR at about 12-00 p.m. (noon). Thereafter on 15-03-2014 they received information that Muhammad Ishaque died and the police was informed. The post mortem was conducted and they buried it at about 9-00 p.m. Both the witnesses were cross-examined at length but nothing favourable to appellant has been pointed out by the defence counsel.In the present case, both these eye-witnesses have fully supported the case, as has been discussed above. It is settled principle of law that the sole evidence of a material witness i.e an eye-witness is always sufficient to establish guilt of the accused if it 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 upon cases of Muhammad Ehsan v. The State (2006 SCMR 1857) and Niaz-Ud-Din v.The State (2011 SCMR 725). Further, the 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”.
11. The ocular account so furnished by above eye-witnesses is further substantiated by the medical evidence.The PW-6DrSadique Ali who attended the deceased when the deceased was alive was examined and deposed that on 13.03.2014, he received injured Muhammad Ishaque through a letter of PS City Jacobabad for treatment and certificate; on examination he found the following injuries upon his person.
1. An incised wound about stab wound at the left side of abdomen. Small intestine became protrudes from the wound.
2. Stab wound at the left side of the chest mid axillary line.
The injuries were fresh and caused by sharp cutting substance. He referred the injured to CMC Hospital, Larkana and reserved the nature of injuries by issuing Provisional MLC on 14.03.2014.
12. The prosecution also examined PW-3 MLO Dr Abdul Razzaque who conducted the postmortem of the deceased and deposed that on 15.3.2014 he received dead body of deceased Muhammad Ishaque son of Muhammad Younis through PC Zubair Ahmed of PS City Jacobabad alongwith Lash Chakas form for the purpose of post mortem and on external examination he found the following injuries on the person of deceased.
1. Laparotomy wound which extend from epigastric region up to umblicous (lapratomy) operative wound and repair.
2. A Surgical wound 3cm in diameter situated on right side abdomen (illeostomy was made due to surgical wound).
3. An incise wound measuring about 6 x 6 cm cavity deep situated on left side Hydochondrim region of /abdomen.
4. An incise wound 3cm muscle deep situated on the left side on chest with mid axillary line.
On the internal examination the Medical Officer found the following damages on the body of the said deceased.
GRANIUM SPINAL CORD, scalp, skull, membrane, brain, spinal card and vertebrate were normal.
THORAX.
Walls, ribs and cartilage were incise wound with muscle deep. Pleurae, larynx and tranchea, right lung, left lung, pericardium and heart were normal and blood vessels were lacerated at the site of injuries.
ABDOMEN. walls and peritoneum were incise wound, mouth pharynx and Esophagus and diaphragm were normal, stomach was lacerated and repair by surgical management, pancreas, lacerated and repair, small intestine was normal and large intestine repair by surgical management, liver normal, spleen was lacerated and removed kidney was repaired by surgical management, bladder was normal, organs of generation (external and internal) were also normal.
MUSCLES, BONES AND JOINTS were lacerated at the site of injuries. Other organs were normal and healthy.
The Medical Officer was of the opinion that the death of deceased occurred due to shock and hemorrhage as a consequence of injury No.3 and 4 individually or collectively were sufficient to cause death of an individual in ordinary course of life. The injury No.1 to 4 was ante mortem in nature from which injury No.1 and 2 are caused by surgical wound and repair. Injury No.3 and 4 caused by sharp cutting substance like dagger.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 by itself does not throw any light on the identity of the 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 and death, and presence of an injured witness or the injured accused at place of occurrence, but it does not connect accused with commission of the offence. It cannot constitute corroboration for proving involvement of accused person in commission of the offence, as it does not establish identity of the accused person. Reliance can be placed upon 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, the medical evidence is fully supported with ocular evidence in respect of injuries received by the deceased which were as per this piece of evidence were caused by sharp cutting weapon which also supports the time of receipt and duration of injuries.
13. The ocular account supported by the medical evidence is further corroborated from the evidence ofPW-9 HC Sohrab (night incharge) who deposed that on13.03.2014 he was posted at PS City Jacobabad. On the same date, he received information through telephone that one Muhammad Ishaque received injuries and is lying in Civil Hospital Jacobabad in injured condition. After receipt of such information, he left PS vide entry No.27 at 2145 hours and went to Civil Hospital Jacobabad. He inspected the injuries of injured Muhammad Ishaque who received injuries at left waist and intestine were out from the waist and second injury was on the left armpit and blood was oozing from injuries and prepared such memo in presence of mashirs.PW-5Sikandar Ali, the author of the FIR and the investigating officer deposed that on 15.03.2014, he was posted as ASI at PS City Jacobabad, and was day in-charge. Complainant Asghar Ali came at PS vide entry No. 11 at about 12-00 Noon for lodgment of FIR. After lodgment of FIR, he recorded the statement of witness Muhammad Yousif under section 161 Cr.P.C. After that he alongwith complainant went to place of incidentwhich was situated at about half K.M away from Police Station and the same was inspected in presence of mashirs namely Aijaz Ahmed and Ahmed Ali wherefrom took the photographs of place of incident and prepared memo of place of incident. As per his evidence on the same date, theywere informed bycomplainant Muhammad Asghar that injured Ishaque has been died at Larkana at 02-30 p.m, and he brought the dead body of deceased at civil hospital Jacobabad. They inspected the dead body and prepared memo of inspection of dead body, Danishname and Lash Chakas form. Muhammad Aijaz and Ahmed Ali were made as mashirs. Thereafter he handed over the dead body to PC Zubair Ahmed for postmortem purpose. He arrested the accused Imtiaz and Arshad @ Bano from Rifle Naka in presence of mashir Aijaz Ali and Ahmed Ali. On 27.03.2014, he called complainant and mashirs at about 1545 hours vide entry No. 15 and interrogated accused Imtiaz who became ready to produce the crime weapon. Accused led them to his own house situated in family Line Jacobabad. On the pointation of accused he recovered such crime weapon viz. dagger from his house under the iron box from his room. The crime weapon was blood stained such mashirnama of recovery of crime weapon was prepared. He sent case property viz. Shalwar of deceased and one dagger to Chemical Laboratory Rohri for its test and report through PC Muhbat. After collection of post mortem report, sketch of vardat and completion of investigation handed overthe custody of accused persons, case property and police papers to SIP Ali Anwar for submission of challan. There evidence was further supported byP.W-4 Aijaz Ahmed the mashir of the case. This mashir supported the arrest and recovery of crime weapon including all the mashirnama which were prepared in his presence. These three witnesses were also cross-examined by the defence counsel but I do not find any substance in favour of the appellant.
14. Learned counsel for the appellant mainly contendedthat the witnesses are near relatives to deceased and are interested therefore their evidence cannot be relied upon, the contention raised in this regard carries no force, as the eye-witnesses have sufficiently explained the date, time and place of occurrence as well as each and every event of the occurrence wherein an innocent person was done to death brutally. Both the parties are known to each other as is evident from their evidence; therefore, there was no chance of mistaken identity of the appellant. It is observed that where the witnesses fall within the category of natural witnesses and detailed the manner of incident in a confidence-inspiring manner then only escape available with the accused/appellant is 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 her 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 the instant case, the dispute over matrimonial affairs is allegedly shown by the complainant in her FIR against oneWahidu alias Wahid Bux who is one as accused in the present case. Moreover, no tangible substance has been brought on record by the appellant to justify his false implication in this case at the hands of complainant party on account of previous enmity. Reliance is placed on thecase of Zulfiqar Ahmed & another v. State (2011 SCMR 492), wherein 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.
15. Learned counsel for the appellant had pointed out some minor contradictions in the evidence which in my view are not sufficient to discard evidence of the eye-witnesses who have fully supported the case of prosecution on every aspect. Their evidence is further supported by the medical evidence and the circumstantialevidence which includes the recovery of crime weapon from the appellant which he used at the time of offence. It is settled principle 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.”
16. For what has been discussed above, I have arrived at the judicious conclusion that the learned trial Court on being finding the present appellant/accused as guilty of murder of the deceased, has rightly convicted and sentenced him and thus has committed no illegality or irregularity while passing the impugned judgment which even otherwise is based on sound reasoning, therefore, it does not call for any interference by this Court. Resultantly, instant criminal appeal being devoid of merits ishereby dismissed.
JUDGE