Criminal: Jail. Appeal No. D- 20 of 2010.

 

                                                            Present.

                                                            Mr. Justice Ahmed Ali Sheikh.

Mr. Justice Salahuddin Panhwar.

 

Appellant:               Nawab Kalhoro: through Mr. Amanullah G. Malik,

Advocate.

                                                

Respondent:           The State: through Mr.Abdul Rehman Kolachi APG.

 

Date of Hearing:

 

                                    JUDGMENT

 

SALAHUDDIN PANHWAR, J- The  appellant has assailed the Judgment dated 28th January, 2010, passed by the Court of learned Sessions Judge/ special Judge (STA), Sukkur in Special Case No.82 of 1997, arising out of Crime No. 146 of 1996, registered with police station Pano Aqil for offences under sections 302,324,, 404, 392, 114,147,148,149 PPC; whereby the appellant was convicted  under Section 302 (b) PPC and sentenced for imprisonment of life and to pay compensation of Rs.200,000/- (two lacs) to the heirs of deceased Mohammad Hanif, which if not paid, shall be recoverable as arrears of land revenue and in default whereof to suffer imprisonment for a period of 6(six) months more. The appellant was awarded benefit of Section 382 (b) Cr.PC.

 

2.       Relevant facts, as set out in prosecution case are that on 29.8.1996 complainant Khair Mohammad lodged report, which reveals that, about two years back accused Mir Muhammad alias Miro was declared “Karo” by Rehmatullah and others, where after Sher Muhammad, brother Mir Muhammad was thrashed and caused injuries such case was registered against Rehmatullah, Ali Sarwar, Ali Asghar, who were granted bail; complainant had stood surety for them, thus they were annoyed with complainant. On 29.08.1996, complainant along with his son Mohammad Hanif, aged 35 years, brother-in-law Ghulam Mustufa aged 22 years, brother-in-law Ghulam Qadir, nephew Mohammad Sadiq, maternal nephew Mohammad Suleman, maternal nephew Amir, maternal grand son Aijaz, cousin’s son Ghulam Mohammad and Feroz all Jatoi by caste resident of village Abdul Rehman proceeded in a Bus No.P-0439 to village Virch for attending a religious congregation, when at 06.30pm, they reached near house of Abdul Shakoor Punjab, all of sudden Miro Ghulam Qadir, Nawab both armed with K.Ks, Mohammad Khan, Rustam both armed with rifles, Hajan, Dholan armed with rifles and three unidentified persons with open faces with pistol, who could be identified on seeing, emerged from an abandoned house situated at Southern side of road and forcibly got the bus stopped, they pulled all the persons down from the Bus;  meanwhile at the instigation of accused Hajan; accused Nawab caused fire arm injury to Mohammad Hanif, and accused  Meero caused firearm injury to Ghulam Mustafa thereafter, all accused caused straight fire shots Ghulam Qadir, Mohammad Sadique, Mohammad suleman, Amir and Aijaz and  Complainant, all received injuries. Deceased Mohammad Hanif had his licence pistol, same was taken away by accused Hajan; thereafter accused persons escaped towards Northern side.. Complainant, Peroz Khan and Gul Mohammad saw that Mohammad Hanif and Ghulam Musutfa , being severely injured, succumbed to the injuries, whereas Ghiulam Qadir, Mohammad Sadique, Suleman, Amir and Aijaz were also seriously injured.  Ali Mardan, Chakar and others also attracted on tumult.

 

03.      After usual investigation the accused Nawab (present appellant), Hajan, Rustam, Dohlan,  Mohammad Khan were sent-up for trial while accused Miro alias Mir Mohammad was declared absconder. Charge was framed against all the accused persons including the appellant, they pleaded not guilty and claimed trial. Meanwhile accused Mohammad Khan expired hence case against him was abated.

 

04.     To substantiate its case, the prosecution examined PW-1 M.O Dr. Mushtaque Ahmed, who produced inquest reports, postmortem report of deceased and medical certificates alongwith their reports and X-rays films; PW-2 complainant Khair Mohammad, who produced FIR. PW-3 Mohammad Suleman, PW-4 Mohammad Sadiq, PW-5 Tapedar Ghulam Shabbir, who produced sketch of vardat., PW-6 Ali Mardan, PW-7 Aijaz Ali, who produced his 164 Cr.PC statement, PW-8 Chakar, PW-9 Mahsir Mohammad Nawaz, who produced mashirnama of injuries, mashirnama of vardat, danistnama of dead bodies, mashirnama of arrest of accused Mir Mohammad,  mashirnama of securing blood stained clothes and mashirnama of arrest of accused Mohammad Khan, PW-10 another mashir Naimatullah, who produced mashirnama of arrest of accused Nawab, Rustam, Hajan and Dholan, PW-11 second mashir Mohammad Malook and PW-12 I.O ASI Anwar Ali, PW-13 Amir Bux and finally PW-14 inspector Ali Hyder, who produced chemical and ballistic reports. Thereafter, prosecution side was closed.

 

05.     The statements of all accused persons, including the appellant, were recorded under section 342 Cr.P.C, wherein they all denied the allegations and professed their innocence. Appellant Nawab had further stated in his statement that in the year 1995, he had purchased a bus from Mohammad Hanif for an amount of Rs.475, 000/- out of which he had paid Rs.238, 000/- to him and had been delivered possession of bus. He had such documents with himself. Subsequently bus was forcibly taken away from him through police and since original documents were in name of deceased, thus, complainant disposed of it. He also examined himself on Oath and examined one defence witness Haji Samano, as provided under section 340(2), Cr.P.C; however, none of the other accused persons neither examined themselves on Oath nor led defence.

 

06.     Learned counsel for the appellant inter  alia  contended that complainant and the witnesses did not support each other in respect of distance of place of incident from house of Abdul Shakoor Punjabi; per Medical Officer all the injured reached in hospital at 11.00 p.m in night and were referred by Police Post  Sangi of  Pano Akil, which is at the distance of 10 kms which proves that  no such incident  was taken place and complainant and witnesses deposed falsely due to admitted enmity;  there is conflict between medical evidence and ocular version; PWs have improved their evidence at the time of trial hence they have lost their credibility; prosecution failed to prove instant case beyond reasonable shadow of doubt;  case against the appellant was never established by the prosecution as there  were material dents in the prosecution case, which were to be resolved in favour of the appellant but he was not extended benefit whereof. In support of above contentions, he has relied upon case law Muhammad Tazeem & others v. The State & others,(2000 YLR 1542). PLD 1982 Peshawer P-25, Muhammad v. The State (PLD 1979 Karachi P-583), Sobho and 2 others V. The State (PLD 2004 Karachi 08),Ghulam Akbar /& others v. The State (2008 SCMR P-1064),

07.     Learned APG for the State vehemently opposed this appeal and further contended that impugned Judgment is speaking one and does not call for any interference by this Court as the learned trial Court has rightly convicted and sentenced the appellant. He prayed for the dismissal of the appeal.

 

08.     Since we are quite conscious of the fact that no conviction could legally sustain, where direct evidence is doubtful; because status of the other evidence, being corroborative in nature. Accordingly, what we have found through scanning of the entire record: prosecution has examined as many as five witnesses i.e. complainant Khair Mohammad, PWs/Injured Muhammad Sadiqu, Mohammad Suleman, Ameer Bux and Aijaz to establish the ocular account, while the PWs Ali Mardan and Chakar, being attracted subsequent to happening of incident, cannot be termed to be eye-witnesses. After meticulous examination of the ocular account, it is manifesting that that except PW Aijaz all other four prosecution witnesses have directly deposed that present appellant Nawab caused fire arm injury to deceased Mohammad Hanif. The perusal of evidence of PW Aijaz  reflects that he only named two of the accused persons but did not deny the happening of the incident, its manner, and injuries received by deceased Muhammad Hanif and Ghulam Mustafa and  witnesses, so claimed by the prosecution, therefore, mere saying of the witness that he did not identify other accused persons cannot be taken as sufficient to disbelieve whole case, when otherwise he sticks with prosecution case nor defence made this witness to say that remaining accused persons, including appellant, were not available at place of incident. It is manifest that the evidence of four out of five eye witnesses carries specific and clear words against the appellant that it was he who caused fire arm injuries to deceased Mohammad Hanif; therefore, such direct allegations are undisputedly established through ocular account.

 

09.     The complainant is the real father of the deceased Mohammad Hanif, while other witnesses are closely related to deceased hence this takes away chances of substitution of murderer of Mohammad Hanif with any innocent person, more particularly, when defence brought nothing reasonable on record which could justify that these witnesses (blood-relations) had such a motive on account of enmity or any other consideration which made them to substitute an innocent murderer of their blood-relation with an innocent person .It is settled principle of law that there is no rule having universal applicability that evidence of a related witness or an interested witness must be corroborated by ignoring the surrounding circumstances by means of some independent evidence and statement of such witness can be relied if found worthy of credence and confidence inspiring. Reference can be made from the case of Khizar Hayat v. The State (2011 SCMR 429) and case of Hasil Khan v.The   State (2012 SCMR 1937). Furthermore, in the instant case the defence could not brought on record any thing which could justify that these witnesses of ocular account could have roped the appellant falsely because of any enmity or other consideration. All the witnesses of ocular account have categorically named the appellant not only during course of investigation but also during course of their examination in trial court, thus, defence counsel is not legally justified to claim any benefit from status of witnesses being related.  

 

10.     As regard to the plea that co-accused, who were alleged to have caused injuries to the witnesses have been acquitted by the trial court, thus, their evidence cannot be relied upon against the appellant. It is manifest that trial court has not disbelieved the evidence of  witnesses, while acquitting co-accused, but they were acquitted on the ground that witnesses had  deposed that the said injuries were sustained by them in the firing made generally by the remaining accused, and they themselves had not pinpointed  as to at whose hands they individually sustained the said injuries, therefore they were acquitted hence in any way it cannot be said that evidence of injured witnesses is not believable against appellant; however, we are conscious of the fact that injured witness would not be relied upon ipso facto, because of injuries, but it is to be examined that whether his evidence is trust worthy and confidence inspiring; keeping in view such proposition of law we have examined their evidence, and have drawn inference that evidence of injured witnesses is within parameters of settled principles of evidence hence their evidence is credible and reliable.

 

11.     We are not convinced with the learned counsel for the appellant that since the witnesses do not support each other in respect of the distance of place of incident from house of Abdul Shakoor hence their versions should not be believed. It is also pertinent to mention that such contradictions cannot be said to be fatal to the prosecution case; it is worth to add here that term “contradiction” used in criminal administration of justice, means “those conflicts in the evidence of the witnesses which touching and disturbing the root of the charge”; because minor contradictions are bound to creep by lapse of time. The witnesses were subjected to lengthy cross examination but defence could not shatter these witnesses from their stand that it was the appellant, who caused fire arm injury to deceased Mohammad Hanif hence prosecution properly established ocular account and it was rightly believed by the learned trial Court Judge after due appreciation of evidence.

 

12.     So for as the Medical evidence, same is in conformity with ocular evidence as the medical evidence has confirmed that injuries caused to the deceased, were with fire arm weapon; therefore, in no way, it could be said that medical evidence is in conflict with that of ocular account. In, addition, the difference between time of start of post mortem and preparation of mashirnama of dead body, as pointed out by the learned counsel for the appellant, also not such which could be allowed to take away the direct evidence. There can be no cavil to deny that complainant should not suffer for fault of prosecution or mistake of the I.O in properly noting down the facts while in discharge of his duties and functions. Reference, if any, required can be given to the case law Ansar Mehmood v. Abdul Khaliqe & another reported as 2011 SCMR 713. Moreover, if such discrepancy is allowed to supersede the direct ocular account it would result in allowing the culprits a safe passage by managing / arranging such discrepancies which could well be claimed to be protected by prosecution to be bona fide mistake / errors.

13.     The charge against the appellant is also strengthened from recovery of the crime weapon viz Kalashnikov along with six live bullets from the house of the appellant at the pointation of accused/appellant Nawab. Thus it is quite safe to say that all pieces of evidence i.e. ocular, medical and circumstantial are in one line and make out a chain of unbroken links, therefore, we are of the view that the learned trial court judge has not committed any illegality in recording the judgment impugned, who even, properly has given the benefit of mitigating circumstance to appellant by awarding life imprisonment.

14.     The upshot of above discussion is that, prosecution has proved its case beyond reasonable shadow of doubt, consequently the appeal having no force is dismissed and the conviction recorded by the trial court is maintained. 

JUDGE

JUDGE