ORDER SHEET.
IN THE HIGH COURT OF
SINDH, BENCH AT SUKKUR
Criminal Jail Appeal No.S- 28 of 2009
Before :-
Mr. Justice Salahuddin Panhwar, J.
Appellant: Muhammad
Azeem Almani,
Through Mr. Muhammad Hamzo Buriro, Advocate.
Respondent: The
State, through
Mr.Abdul
Rehman Kolachi, A.P.G.
Date of hearing:
24th. December, 2012.
J U D G M E N T
SALAHUDDIN PANHWAR, J:- The appellant Muhammad Azeem has assailed the
Judgment dated 04th. March, 2009, in Sessions Case No.27 of 2003 (Re- State v..
Jam and others) for offences, punishable U/S: 302, 148, 149 PPC of Police
Station, Baiji Sharif (District Sukkur), whereby, the learned Additional
sessions judge(hudood) Sukkur, convicted appellant for offence U/s 302 PPC and
sentenced to suffer R.I for 25 years with
benefit of section 382-B, Cr.P.C.
2. Succinctly, the facts of the prosecution case are that on
08.12.2002, complainant Muhammad Malook lodged FIR; that about fifteen years
back Dildar had leveled allegation of Karap upon Mst.Nazul alias Nazia, who was
the sister of accused Shabbir ;and such faisla was held; according to that fine was paid to Dildar Almani; three months
prior to lodging FIR, accused Shabbir demanded hand of Marios ( brother of
complainant) daughter to settle the dispute of Karap but he told him that he had already paid fine to Dildar;
thereafter, accused Shabir threatened that he will not spare him. On
08.12.2002, the complainant along with his brother Morio were going towards
Nouraja, when they reached at link road near the land of Syed Aminuddin Shah;
they were intercepted by accused Shabbir, Yakhtiar alias Akhtiar, Mushtaque,
Jam, Muhammad Azeem and Sultan Almani, all were having guns. Accused Shabbir , while abusing Morio,
caused gunshot injury to him; whereas
accused Muhammad Azeem and Yakhtiar also fired upon Morio, who on receiving the
fire arm injuries fell-down by raising cries. Witnesses Abdul Ghafoor and
Abdullah Almani, reached their; meanwhile accused escaped towards western side
by making aerial firing; they saw injured Morio, having firearm injuries on
different parts of his body; was lying dead. Complainant approached Police
Station and lodged the report.
3. That after usual
investigation, accused Jam and Yakhtiar
were arrested, they were sent up for trial, remaining accused were declared
proclaimed offenders, while the formal charge against the accused Jam & Yakhtiar was framed at Ex.3, to which
they pleaded not guilty and claimed their trial, their pleas were recorded at
Ex.4 to 6. Subsequently, appellant Muhammad Azeem was arrested, as such on
19.12.2005 the amended charge was framed at Ex.9 to which they pleaded not
guilty and claimed for trial.
4. The prosecution in order to substantiate its case
examined P.W-1 Medical Officer Dr.Lachhmandas
at Ex.18, who produced inquest report and Post-mortem Certificate as Ex.18/A
& 18/B respectively; P.W-2 Complainant Muhammad Malook at Ex.19, who
produced FIR at Ex.21/A; P.W-3 Abdullah
who produced his 164,Cr.P.C statement as Ex.21/A; P.W-4 Abdul Ghafoor at Ex.22 who produced his 164
Cr.P.C statement at Ex.22/A, P.W-5 Mashir Allandho at Ex.23 who produced
mashirnama of vardat and seeing the dead-body at Ex.23/A; inquest report at
Ex.23/B, mashirnamas of arrest and personal search at Ex.23/C & D respectively;
P.W-6 Abdul Rasheed at Ex.24 who produced copy of roznamcha entry, mashirnama
of recovery of clothes; P.W-7 SIP Imam Bux Brohi at Ex.25 who produced
mashirnama of arrest of accused Yakhtiar at Ex.25/A; P.W-8 Ghulam Kair at
Ex.26; P.W-9 Tapedar Mir Ahmed at Ex.27 who produced sketch of vardhat at
Ex.27/A. Thereafter the learned DDPP closed the side of prosecution at Ex.28.
5. The statements of accused U/s 342 Cr.P.C were recorded at
Ex.29 to 31 respectively, wherein they claimed innocence and to have falsely
been implicated, however, none of them examined himself on Oath nor led any
evidence in defence as provided under section 340(2) Cr.P.C
7. Learned counsel for the appellant inter-alia contended that prosecution
case was not free from doubts; motive for false involvement was very much
available with the complainant party; complainant was not cross-examined hence
his evidence was not required to be considered even FIR, produced by
complainant was not admissable under the law; on same set of evidence the
learned trial court judge acquitted the co-accused Jam therefore conviction to
appellant / convict on same set of evidence is unwaranted ; witnesses are
related inter-se; no recovery from the
appellant was effected. Concluding so, he stoutly argued that there were
contradictions which were required to be resolved in favour of the appellant
but learned trial court judge departed from such principle, thus, judgment,
impugned, is not sustainable under the law.
8. On the contrary, learned AAG, representing the State, has
fully supported the judgment, while
arguing that mere acquittal of co-accused is of no help for the appellant; there
is direct evidence against the appellant / convict hence learned trial court
judge has not committed illegality, while convicting the appellant.
9. I have heard the contentions of either sides and have also
perused the available record meticulously.
10. I am quite conscious of the factual and legal position that it
is the ocular (direct) evidence which matters in all criminal case (s), related
to human body and no conviction can
legally sustain only on corroborative pieces of evidence such as recovery,
medical and circumstantial in such like cases, which, all are corroborative
pieces of evidence in nature as was held by honourable Supreme Court of
Pakistan in a case reported in 2011 SCMR 460 that it is not the medical evident
but ocular account which is to be considered at first to determine guilt or
innocence. Keeping in view the said propsotion of law, I would like to
examine as to what the prosecution has brought onto the record to prove the
charge through ocular evidence. Examination of the available material; reveals
that prosecution examined PW 2 Complainant Muhammad Malook, PW-3 Abdullah and
PW-4 Abdul Ghafoor on ocular account to establish the charge.
11. Before going into any
further, it would be, in all fairness, to examine the evidentiary value of
examination-in-chief of PW-2 Complainant and FIR, produced by him on record,
because, admittedly, cross examination was reserved at the request of defense
counsel, complainant was continiously attending the trial court , but on one or
other reason cross was not conducted , lateron he was murdered: learned counsel for the appellant has given
much emphasises that examination in chief of complainant has no evidentiary
value . This issue cannot be properly responded, without reference to the
article 46 and 47 of the Qanun-e-Shahadat Order, 1984. The Article 47 of the
Order being material to the issue is reproduced hereunder:-
Article-47: Relevancy of
certain evidence for proving, in subsequent proceeding, the truth of facts
therein stated:
Evidence given by a witness
in a judicial proceeding, or before any person authorized by law to take it, is
relevant for the purpose of proving, in a subsequent judicial proceeding, or in
a later stage of the same judicial proceedings, the truth of the facts which it
states, when the witness is dead or cannot be found, or is incapable of giving
evidence, or is kept out of the way by the adverse party or if his presence
cannot be obtained without an amount of delay or expense which, under the
circumstances of the case, the Court considers unreasonable;
Provided that:
i)
the proceeding was between the same parties or their representatives
in interest;
ii)
the adverse party in the first proceeding had the right and
opportunity to cross-examine;
iii)
the question in issue were substantially the same in the first as
in the second proceeding.
Explanation:- A criminal
trial or inquiry shall be deemed to be a proceeding between the prosecutor and
the accused within the meaning of this Article.
The use of the phrases
evidence of a witness in a judicial proceeding or before any person authorized by
law to take it have made it clear and obvious that the evidence of a
witness in a judicial proceeding, who either dies or his appearance
cannot be procured, within conscious of the Court, is relevant even at
subsequent judicial proceeding. Since the explanation, provided at the bottom
of the Article, has further cleared that it has got its impact upon the
Criminal proceedings hence relevancy of such evidence is no more under any
question or ambiguity.
11.Since, there is no cavil
in legal proposition that cross-examination is a material part of the evidence of
a witness hence much importance is attached to an opportunity of
cross-examination to the other side but should this right of opportunity be
allowed to be taken as a tool, in the hands of the defence, to exaggerate agony
of a witness?. The answer would, surely, is in negation. What the Court (s) can
do is to provide a fair opportunity to defence to avail the right of
cross-examination to the witness, more particularly, when the witness steps
into witness box; takes the Oath and gives his examination-in-Chief. When a
witness, in a witness box before the Judge (or person authorized by law to take
it), gives evidence (examination-in-chief) in presence of accused and his
counsel; he is always clear in his mind that he will be cross-examined by the
defence and even by the Judge himself. But if yet the defence avoids to
cross-examine the witness and gets adjournment on his own request and later any
mishap happens with such a witness; wherein he either dies or becomes incapable
of appearing in the court then the defence would not be justified to question
admissibility and relevancy of such examination least as corroborative piece. Since
in the instant case the complainant gave his examination-in-chief in presence
of appellant and his counsel and at the stage of opportunity of
cross-examination the counsel for the appellant got adjournment; complainant
was in atendance on every hearing but he was not cross examined; subsequently
the complainant was murdered. Hence, considering above legal position and
peculiar circumstances of the case, I am quite clear in my view to say that
evidence of PW-2 complainant Muhammad Murad of this case is admissible and
relevant hence can well be taken into consideration. Reference can be made to
the case of Arbab Tasleem reported in
PLD 2010 Supreme Court 642, in which Honourable Supreme Court has held:-
17
18. Indeed, legally and technically
examination-in-chief of P.W.11, recorded on 18.12.2003, may not be termed as a
statement under section 512, Cr.P.C. in the strict sense, nor Appellate Court
in its impugned judgment had held so, but the fact remains that in the peculiar
facts and circumstances of the case, the manner in which proceedings in the
Sessions Case were delayed; the star eye-witnesses of the incident were
repeatedly required to appear in Court for their evidence, the circumstances
under which examination-in-chief of
P.W.11 was recorded before the Trial Court on 18.12.2003; the conduct of the appellant and his counsel
in Court on 18.12.2003; non-availing of
the opportunity of cross-examination even thereafter for a period of over one
month and three dates of hearing, are the material facts which could not be to
give benefit of such delay in the proceedings of Sessions Case to the
appellant. There is hardly any need to observe that law is a living organ and
it is the duty of the Court to adopt a realistic and pragmatic approach for its
application, looking to the peculiar facts and circumstances of each case. In
the instant case, as discussed above in detailed, it cannot be said that the
evidence of P.W.11 in the form of his examination-in-chief is liable to be
rejected to simple proposition that he was not subject to cross-examination,
but it is case where in a deliberate and calculated manner the appellant
himself avoided to avail such a opportunity. To put it differently, a
distinction drawn between the two situations, one where opportunity to
cross-examination was not given or denied to a party, and second where it was
given but deliberately or otherwise not availed of. Instant case, undoubtedly,
falls under the second category, where ample opportunity was given but not
availed by the appellant. We have, therefore, no reason to disbelieve or
disagree with the observation of the trial Court that appellants side
deliberately avoided to cross examine deceased P.W Jehanzeb. Even the trial
Court, to a greater extent, cannot be blamed in not engaging a State Counsel on
behalf of the appellant in the matters, as on one hand at one stage of
proceedings such request was made by the appellant to the Court, which was kept
on hollow hopes nor the Court was given such impression to enable it to
undertake such exercise to avoid further delay in the cross-examination of
P.W.11. Seemingly, the trial Court exercised restraint in appointing State
counsel on behalf of appellant as it might have given the appellant yet another
cause of grievance to challenge it before the higher forum, and in this manner
to further delay the conclusion of trial.
12. Now reverting to merits
of the case, it is manifest that all three witnesses of ocular account i.e Complainant Mohammad Malook, PW Abdullah
and PW Abdul Ghafoor have fully supported each other in respect of date and
time of incident, place of incident and the narration of incident and even have
categorically stated that appellant Muhammad Azeem , along with other
co-accused did cause fire shot to the
deceased Morio. The appellant is directly charged for plying active role in
causing murder of the deceased; there is no allegation of any incorrect
identification of the accused, including the appellant as parties are known to
each other; the appellant has not come out with any specific plea of his false
involvement nor could succeed in causing a grave dent in prosecution case with
regard to his innocence. Therefore, sufficient evidence was available against
appellant ,thus, learned trial Court judge has not committed any illegality in believing
the ocular account more particular. I am supported in my such view with the
case law, reported in 2010 SCMR 1733.(pervaiz ahmed alias peeja v. The state)
13.Further, complainant and
PW Abdul Ghafoor are real brother of the deceased therefore, it cannot be
believed that blood relations will direct their finger at innocents with regard
to direct allegations, because such is a rare phenomena and in normal
circumstances this theory of substitution by blood relations at the cost of
real culprit is ruled out. Reference can be made to the case of Zahoor Ahmed
Vs. The State reported in 2007 SCMR 1519.
14. Regarding the plea, that co-accused Jam has been acquitted on
same set of evidence is suffice to say that
there may be widening of the net but since the principle of falsus
in uno falsus in omnibus has lost its applicability in the
circumstances of our society and courts are under burden to sift the grain from
chaff, therefore, acquittal of the co-accused Jam is of no help for the
appellant, more particularly, where the case against co-accused was different
from that of present appellant because he was not alleged by blood relations to
have caused any fire arm injury to the deceased Morio.
15. So far the recovery which has not been effected from the
appellant. It is not enough to say that mere non-recovery from possession of
the appellant is sufficient to
disbelieve the direct evidence, because the recovery of crime weapon in a
criminal case, related to human body, can only serve as a piece of supporting
evidence, if case is otherwise proved by other evidence independently. Reference
can be made to the case of Muhammad Nadeem alias Deemi Vs. The State reported in 2011 SCMR 872.
16. As regard the plea of
witnesses, being related and inter- se; it would suffice to say that mere
relationship is no ground at all, to disbelieve the evidence unless and until
it is established by defence that those witnesses have such enmity or other
consideration which could justify the witnesses to be not of truth. The reference,
if any, can well be given to case law reported in 2011 SCMR 429 (Khizar Hayat
Vs. The State), 2011 SCMR 1954 (Muhammad Iman
Vs. The State) and 2012 SCMR 1936 (Hasil Khan Vs. The State and others).
17. As regard the plea of
contradictions I also do not find any substance, therein because the defence
counsel failed to pin point as to what was the material dent in prosecution
case which was sufficient to bring the principle of benefit of doubt into
operation regarding the case of appellant. The contradictions, not grave in
nature, can be ignored safely as minor contradictions do creep in with passage
of time. In the instant case all witnesses of ocular account are in
confirmatory with each other in respect of place of incident, its time,
narration of incident and even allegation against the present appellant. I am
also supported in my such view with the case law, reported in 2011 SCMR 460
(Muhammad Ilyas & others Vs. The State).
18. It is further matter of
record that medical evidence fully supports the ocular account with regard to
death of deceased as a result of gunshot injuries and since the allegation
against the appellant is also that of causing gunshot injuries to the deceased,
therefore, it is quite safe to say that ocular account was fully supported with
the medical evidence. Further, despite lengthy cross examination to medical
officer by the defence counsel, could not create any doubt, which could have
favour him or least could have led to an inference that medical evidence is not
in corroborating to the ocular account, so furnished by the prosecution.
19. Since overall discussion,
made above, has made me of the view that the prosecution successfully
established the charge against the appellant through ocular account which,
further, is supported by the medical evidence by the weapon with which, per
ocular account, the deceased was murdered by the assailants including the
appellant. Even the appellant has failed to show any material illegality in the
judgment impugned or that there has been any misreading or non-reading of the
evidence by learned trial Court judge, hence no illegally or irregularity was
committed by the learned trial court judge in convicting the appellant.
20. In view of discussion,
made above, the appeal of the appellant is declined and the judgment of the
trial court is maintained.
JUDGE
Announced on 28.01.2013
A.R.BROHI