ORDER SHEET.
IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.
Criminal Jail Appeal:
No.67 of 2011.
Appellant: Abdul Khalique through Mr.Abdul
Mujeeb Pirzada, senior Advocate Supreme Court, and Mr.Abdul Ghaffar A. Memon
Advocate.
Respondent: The
State through Mr.Syed Sardar Ali Shah Assistant
Prosecutor General.
Date of Hearing: 03rd December, 2012.
JUDGMENT.
SALAHUDDIN
PANHWAR, J- This criminal jail appeal is against the impugned judgment dated 30th
June 2011, passed by the learned
Sessions Judge, Sukkur, in Sessions Case No. 27/2008 arising out of Crime
No.08/2008 of Police Station, SITE, Sukkur registered for an offence under
Section 302, 324, 337-H(ii), 379, 114, 109, 149, PPC, whereby, the appellant
was sentenced under Section 302, PPC to
suffer R.I for life and to pay a fine of Rs.50,000/- to the legal heirs of the
deceased and in default, undergo one year more.
The appellant was also extended benefit of Section 382-B, Cr.P.C.
2. The facts of the prosecution case as set
out in FIR are that the complainant Qadir Bux had matrimonial dispute with
Abdul Khalique Damiyo, who, used to say that he would fight with Lal Bux. on
18.01.2008 complainant alongwith his brother Lal Bux left their house for
purchasing milk and when they were standing on the road in front of shop of
Rizwan Plaza near Board Office, Sukkur accused Abdul Khaliq having 12 bore
country made pistol, Wazeer and Abdul Haq, having pistols came there and at the
instigation of Abdul Haq accused Abdul Khaliq fired upon Lal Bux, which hit him
on left side of chest and he fell down, while accused Wazeer and Abdul Haq caused
straight fire shots upon complainant with intention to commit murder but he
saved himself by falling down on the ground. In the meanwhile PWs Imdadullah
brother of complainant and Naseer Ahmed reached there, whereupon, accused Abdul
Khaliq, Wazir and Abdul Haq ran away by making aerial firing and also took away
licensed pistol of Lal Bux. It is further mentioned that the accused persons
have committed murder due to matrimonial affairs on the abetment of accused
Khadim Hussain and Ali Nawaz.
3. After the registration of FIR, the
investigation was conducted by SIO Amjad Iqbal, who during investigation,
inspected the dead body; prepared mashirnama, danishtnama and secured blood
stained clothes in presence of mashirs. He also visited the place of incident,
arrested accused Khadim Hussain and recorded 161 Cr.P.C statements of the witnesses,
thereafter due to his transfer further investigation was conducted by SIO
Shamsuddin Gopang, who, during investigation found accused Khadim Hussain,
Abdul Haq and Ali Nawaz innocent and let them off; and after completing
investigation, accused persons were sent up for trial.
4. A formal charge was framed against the
present accused to which they pleaded not guilty and claimed trial. To substantiate their case, the
prosecution examined Dr. Muhammad Yasin at Ex.5, who produced postmortem report
at Ex.5-A, PW 2 Complainant Qadir Bux at Ex.6, who produced FIR at Ex.6-A, PW 3
Imdadullah at Ex.7, PW 4 Naseer Ahmed at Ex.8, PW 5 I.O Amjad Ali at Ex.9, who
produced memo of dead body at Ex.9-A, danishtnama at Ex.9-B, memo of seizing
clothes of the deceased at Ex.9-C, memo of place of incident at Ex.9-D, Memo of
arrest at Ex.9-E, PW 6 SIO Shamsuddin at Ex.10,PW 7 Hafeezullah Tapedar at
Ex.11, who produced map at Ex.11-A, PW 8 SIP Javed Ali the author of the FIR at
Ex.13, PW 9 Ali Nawaz mashir Ghulam Mustafa at Ex.14, PW 10 ASI Mohammad Nawaz
at Ex.15, who produced memo of recovery of pistol at Ex.15-A. The learned DPP
produced on record the reports of Ballistic expert and then closed its side
vide statement at Ex.17.
5. The statement of appellant under Section
342, Cr.P.C was recorded, in which appellant denied the allegations of
prosecution, and in his defence, examined DWs Inspector Ghulam Qasim, Ghulam
Hussain and Habibullah, DW inspector Ghulam Qasim conducted re-investigation;
according to re-investigation DWs Habibulah, Ghulam Hussain and others disclosed
that they were sitting at the Hotel of Ferozuddin Labano, where, suddenly three
persons, armed with country made pistols, with open faces, came there and
caused murder of Lal Bux Damiyo, thereafter they learnt that accused Abdul
Khaliq and Wazir have been arrested in the case.
6. Mr. Abdul Mujeeb Pirzada learned counsel
for the appellant has inter alia contended that three accused persons were implicated
at the first instance by the complainant in FIR, later on by further statement
two more accused Khadim Hussain and Ali Nawaz were implicated, which proves
that the complainant has tried to widen a net of false implication; all the
witnesses are related inter-se therefore they are interested witnesses; moreover
they are also chance witnesses as they are not resident of the same vicinity of
the incident place; they have also not explained there presence at the crime seen properly;
complainant has stated that injured died in the way of Hospital, whereas, postmortem
report reflects that injured Lal Bux was brought at Hospital at 11.15 AM an
died at 11.30 AM, therefore, postmortem report negates the version of the
complainant; in the instant case second investigation was carried out,
according to that “case is doubtful but since the challan has been submitted”,
therefore, same was not recommended in false class; complainant has narrated
that he brought injured Lal Bux at Hospital, thereafter, lodged FIR, but postmortem report shows that injured was brought by one Abdul
Majeed, who, being material witness was not examined by the prosecution nor
cited in the Calendar of challan ,though, it is the duty of the prosecution to
prove the case beyond any shadow of reasonable doubt; even one dent in the
prosecution case, is sufficient for acquittal; the appellant has been acquitted
in 13(d) case and such Judgment was produced before the Court but this
aspect was not given due weight by the
trial Court, and on this score alone, the appellant was entitled to be extended
the benefit of doubt; admittedly place of incident is surrounded by shops and
houses; sketch prepared by Tapedar reflects that houses of Manzoor and Hakim
are available near the place of incident but both natural witnesses have not
been examined by the prosecution; admittedly the investigating officer has not
bothered to conduct the investigation honestly and impartially by recording the
evidence of natural witnesses, who were available at the time of incident;
according to the complainant, accused persons after committing the murder of
deceased Lal Bux, took away his licensed pistol but remaining eye witnesses are
silent on this count, which proves that ocular evidence is not trustworthy; the
statements under Section 161, Cr.P.C of two witnesses Imdadullah and Naseer
were recorded after the delay of 12 days, for which, no sufficient explanation
has been furnished thus such delay is
fatal to the prosecution case. He has relied upon 2005 P.Cr.L.J 830, Rehmat
Ali V. The State 2010 SCMR 584,Safdar and 3 0thers v. The state, 2006 P.Cr.L.J
1870, 2008 SCMR 707, 2011 SCMR 208, Noor Zaman v. Abdul Latif and another (2012
P.Cr.L.J 569), Iqbal Shah v.The State (2011 P.Cr.L.J 1345).
7. On the contrary, Mr.Sardar Ali Shah
learned APG appearing for the State has argued that the acquittal in 13(d) case
is the result of an independent proceedings hence same will not extend any
benefit to the appellant in any manner; prosecution has successfully proved its
case because it is quality and not the quantity which matters; and conviction
can be maintained on sole witness; PWs have very clearly involved the present
appellant during the course of examination and their evidence has remained
unshaken; DWs examined by the appellant have supported the prosecution case as
they are in same line of the prosecution case regarding the place of incident,
manner of incident, number of accused, presence of deceased and moreover they
have not given clean chit to the present
appellant regarding his involvement and also have not deposed that PWs
at the time of incident were not available. He has relied upon The State v.
Khan Muhammad alias Khanan and others 2005 P.Cr.L.J 811,Zakir Hussain V. The
State 2008 SCMR 222,Altaf Hussain V. The
State 2010 SCMR 1020, Haroon Rasheed and
6 others V. The State, 2005 SCMR 1568; and Mobashar V. The State, 2009 SCMR
1133.
08. Heard the arguments of the learned counsel
for the respective parties and peruse the record.
09. I
have carefully scanned the version of occurrence, narrated by complainant Qadir
bux, PW(s) Imdadullah and Naseer Ahmed at the trial and have not found any
departure made by these three witnesses from the narration made in FIR or for
the matter of that any inconsistency in their inter se version of the
occurrence. They have specified explicit account of the incident accusing
appellant for the part, played by him, in the commission of crime. It was
rather the defence which strengthened
the case of the prosecution, and further,
I would like to endorse here that a charge in a criminal matter can well be
parted in two parts i.e( i) happening and manner of incident and( ii)
commission whereof by the persons, sent as accused by prosecution.
10. In the instant case in hand all the
witnesses of the ocular account are in one voice in respect of:-
i)
date
and time of incident;
ii)
place
of incident which finds support from collection of blood from place of incident
iii)
number
of accused persons to be three;
iv)
Murder
of the deceased with fire arm which also finds corroboration with post mortem
report.
Recovery
/ securing of blood from the place of incident prove the venue of occurrence,
as held in the case law, reported in Rahimullah Jan v Kashif and others (PLD
2008 SC 298). Moreover, the very defence, led by the accused / appellant,
confirms such portion of the evidence of these witnesses. In other words it can
safely be said that the defence witnesses reiterated the versions of the ocular
account of prosecution witnesses to this extent, hence it is quite safe to hold
that the prosecution successfully established first part of the charge.
11. Now
let’s examine what the prosecution has brought on record to prove the other
portion of the charge by putting it in a juxta position with that of the
defence evidence:-
|
The prosecution claims in the FIR that on
18.01.2008 at about 1045 three accused persons namely Abdul Khaliq armed with
cartridge pistol, accused Abdul Haque empty handed, Wazeer armed with Pistol
came at on the road in front of shop of Rizwan Plaza near Board Office,
Sukkur. |
Both
the defence witnesses support the evidence of the prosecution witnesses on
this point as they admit in their evidence that on relevant date and time
three persons came at place of incident. on the road in front of shop of |
12. Meaning thereby that portion of evidence of
the witnesses of prosecution is admitted by the defence itself hence the
presence of prosecution witnesses finds support even from the defence witnesses
who confirm the same narration what the prosecution witnesses say.
|
The prosecution further claims that on such
date and time out of these accused persons, the appellant / convict Abdul
Khalique caused murder of deceased by making fire shot with weapon with which
he was armed. i) Complainant
Qadir Bux specifically stated that it was the appellant /accused Abdul
Khalique who caused fatal fire shot to deceased. ii)
PW-2 Imdadullah stated that appellant / accused Abdul Khalique made fire shot
to his brother (deceased) iii) PW-3 Naseer Ahmed stated that appellant /
accused Abdul Khalique made fire shot to his brother (deceased). |
Defence witnesses stated in this respect as
follows: Both witnesses claim to know both complainant
and the accused persons. They specifically claim that three persons, with
open faces, came and murdered the deceased.
|
13. Meaning thereby that these defence
witnesses, claim to be related with the accused / appellant but did not attempt
to give the name or description of the assailants which attitude is quite
illogical rather unbelievable one more particularly when the same is coming
from relative (s) of person who, within their knowledge, is accused for murder.
On the other hand, since the witnesses of ocular account are blood-relatives to
deceased and they all have attributed fatal shot (fire arm injury to deceased) to
appellant, therefore, it is hard to believe that they would attempt to
substitute the culprit with innocent. On this point I find support with the
case law, reported as Zahoor Ahmad v The State (2007 SCMR 1519).
14.
Further, it is a matter of record that the present
witnesses of the defence, though claiming to be real eye-witnesses, but
remained silent for inordinate period of more than a year i.e 20.02.2009, when
I.O of re-investigation called them, which investigation was being carried out
at the behest of accused party. It is clear and obvious that these witnesses
never made any attempt to make any application to any authority nor they ever
appeared before any authority to depose such facts which shows that they did
not come with full truth.
15. The
above comparison of defence evidence and that of prosecution towards ocular
account prima facie establish that since witnesses of prosecution are not only
believed by the defence itself regarding manner of incident, weapon used in
commission of offence, number of assailants, place of incident then attribution
of fire arm injury by appellant/ accused was rightly believed by the learned
trial court judge to extent of the appellant / accused Abdul Khalique.
16. As regard ground, taken by learned counsel
for the appellant, that since the complainant involved three accused persons in
FIR and then through further statement brought two more persons as accused
hence complainant’s version cannot be belied on principle of ‘Falsus in uno
falsus in omnibus”. It would suffice to say that it is now well settled that
doctrine of ‘Falsus in uno falsus in omnibus’ (false in one thing, false in
all) is not applicable in prevalent system of criminal administration of
justice and more so there is no rule having universally applicable that where
some accused were / are not found guilty the other accused would ipso facto
stand acquitted because the Court has to sift the grain from chaff. The
reference, if any, needed can well be given to case law, reported as Riaz
Hussain v The State (2001 SCMR 177), hence the appellant cannot claim any
benefit by uttering that since other accused were not found guilty hence he is
also entitled for benefit of doubt and until he either brings his case within
same sphere or independently show reasonable dent in prosecution case which
could justify his plea of acquittal. I am conscious of the developing trend
that people widen the net by naming innocents but it is hard to believe that
one would go to name innocents at the costs of his own blood-relation i.e
leaving real culprit. Further, the phrase ‘widening the net’ itself negates
innocence of all involved accused.
17. As regard the plea of witnesses, being
related and inter-se, I can safely say that the phrase interested or related
witnesses is never sufficient to declare the evidence of a witness as doubtful
because what is always required to be seen is the veracity and credibility of
the witness and not his relationships. Further, the interested witness is one
who is partisan inimical towards the accused or has a motive or cause of his
own to falsely implicate the accused in the crime and such cause or motive should
be shown to be of such gravity that a person, closely related with deceased, could
be believed to have gone to such an extent to name innocent (s) while leaving
real culprits of deceased. The reference case be made to the case law reported
as Talib Hussain and others v The State and others (2009 SCMR 825) & Ijaz
Ahmad v The State (2009 SCMR 99).
18. As regard the delay in recording 161 Cr.P.C
statement of witnesses it would suffice to say that since it is always the
absolute duty of the Investigation Officer to take efforts in recording the
statements of the witnesses of the incident hence if there appears any delay in
recording of 161 Cr.P.C. statement it would, in my view, should not be allowed
to hold an adverse inference against testimony of the witnesses on this count
alone more particularly when names of
witnesses are mentioned in promptly lodged FIR and also this does not come on
record through cross of I.O that despite efforts witnesses avoided or were
away. Admittedly, no such thing has come on record from the defence and even no
such suggestion was put, therefore, this ground also not of such standard to
hold the case doubtful where, testimony of witnesses speaks otherwise. Even otherwise, it can safely be added here
that any irregularity in the investigation by I.O is of no help for the accused to claim any
benefit. I am guided in this view with case of Qamar uz Zaman and other v. Haji
Allah Bux and another reported in 2012
19. As
regard the plea of witnesses, being not resident of the place of occurrence,
the perusal of the evidence of the witnesses would show that they claimed going
to place of incident on the relevant time and date and since such claim of the
witnesses was not specifically challenged by the defence through course of
cross-examination, therefore, the defence cannot be legally justified to question
presence of those witnesses at such stage. Needless to add here that fact
stated in examination-in-chief but not cross-examined by the accused the effect,
whereof would be nothing but that such portion was admitted by the accused. I
am guided by the case law, reported as Dr. Javaid Akhtar v The State (PLD 2007
SC 249).
20. As regard the contradictions pointed out by
the learned counsel for the appellant with regard to delivery of dead body of
deceased by one Abdul Majeed and not by complainant and death of deceased in
hospital while complainant claimed the same during the way to hospital, it
would suffice to say that both these contradictions, in no way, improves the
case of the appellant / accused as it causes no effect upon the incident nor
both these contradictions can be sufficient to hold that complainant was not
present at place of occurrence. Mere accompanying of one with dead body would
not make him an important witness of incident.
21. The learned counsel for the appellant /
accused has put much stress upon acquittal of the accused / appellant from the
charge of 13(d) Arms Ordinance. In this respect I would say that recovery of
crime weapon is always corroborative piece of evidence which is not of much importance
more particularly where the case is otherwise proved, the corroboration from
recovery of crime weapon or otherwise become immaterial. Reference on this
point can well be given to case law, reported as Muhammad Nadeem alias Deemi v
The State (2011
22. As
regard the outcome of the second investigation, what I find from perusal of the
record is that outcome of the second investigation appears to be to give a
clean chit to the nominated accused. The purpose of investigation is always to
bring truth on surface by collecting material and not to create complications /
or questions as appears from the subsequent investigation report of the case,
in hand, where the investigating officer in his report, has not denied the
happening of incident but have given clean chit to nominated accused persons
without unearthing the names of other culprits as real culprit, if present
applicant was not innocent according his report. Further, there is another
interesting aspect, reflecting from the second investigation report, that it was
entrusted at the request of the accused side in October 2008; and conclusion,
whereof, was submitted by the investigating officer with a delay of seven
months. How on earth any significance can be attached to a report compiled and
submitted after such a long time, especially, when there was every possibility
of fabrication of evidence. I am fortified with the case law on this
proposition as in case of Riaz Hussain, honourable Supreme Court reported in
1986 SCMR 1934 has held that: -
“The system of re-investigation in criminal
cases is a recent innovation which is always taken up at the instance of
influential people and favourable reports obtained. This is no way assists the
courts in coming to a correct conclusion; it rather creates more complications
to the court administering justice. We, therefore, disapprove this system
altogether”.
23. Accordingly,
in view of what has been discussed above, I am of the firm view that the
prosecution has proved case beyond reasonable shadow of doubt and appellant /
convict has failed to point out any illegality or material miss-reading or
non-reading of the evidence by learned trial court judge in recording the
judgment, impugned, hence the appeal in hand is hereby dismissed.
Announced
on 14.01.2013. JUDGE
Akber.