HIGH COURT OF SINDH AT KARACHI

Criminal Jail Appeal No.235 of 2010

Confirmation Case No.04/2010 (Karachi)

 

        Present: Mr. Justice Sajjad Ali Shah

                      Mr. Justice Naimatullah Phulpoto

 

Appellant:                               Muhammad Iqbal Makrani through Mr. A.Q Halepota, Advocate.

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Respondent:                            The State through Mr. Ali Haider Saleem, A.P.G

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Date of hearing:                      10.04.2013

 

Date of Judgment:                  April 23rd 2013

 

J U D G M E N T

 

NAIMATULLAH PHULPOTO, J- Appellant Mohammad Iqbal was tried by learned Additional Sessions Judge Tando Adam in S.C.No.174/2009. He was found guilty and convicted vide judgment dated 21.12.2009 under Section 302(b) PPC and sentenced to death. Appellant was also directed to pay Rs.2,00,000/-as compensation u/s 544-A Cr.P.C to the legal heirs of deceased. Reference for confirmation of death sentence was made to this Court. This judgment will dispose of above appeal and confirmation case, as the same arise out of a common judgment.

 

2.         Brief facts of the prosecution case, as disclosed in the FIR are that on 10.10.2005 at 0130 hours, complainant Mohammad Khan Khaskheli lodged his report alleging therein that he is a Tailor Master. One day prior to the lodging of the FIR in the evening time, there was a quarrel between his brother Qurban Ali (now deceased) and appellant Iqbal over the matter of the parking of a Chingchi/Rickshaw in front of shop of accused. It is alleged that appellant Iqbal issued threats to Qurban Ali. On 09.10.2005 at 10:00 p.m. complainant along with his brother Mumtaz Ali, nephew Ghulam Hussain were standing near Hira Hospital. It is stated that Qurban Ali, brother of the complainant was standing on the other side of the road near Hospital in the street. It is alleged that appellant Mohammad Iqbal, carrying dagger in his hand appeared and challenged Qurban Ali while saying that as to why he had abused him and declared that he would not be spared, thereafter, it is alleged that appellant Iqbal gave dagger blows to Qurban Ali, who fell down. Complainant party raised cries. Appellant while seeing the complainant, coming nearer to him ran away to the Northern side. Complainant and P.Ws saw that Qurban Ali had sustained dagger blows at the left side of his stomach. Qurban Ali on the way to the Tando Adam Hospital died. Complainant gave such information on the telephone to the concerned police. Police arrived at hospital and after postmortem examination, the dead body was handed over to the complainant. After registration of the FIR, its copy was handed over to Inspector Mohammad Hassan Malah P.S Tando Adam for investigation. I.O visited the place of wardat, it was shown to him by complainant situated near his house in the street. I.O collected blood stained earth from place of vardat in presence of mashirs, sealed it, recorded 161 Cr.P.C statements of P.Ws Ghulam Hussain and Mumtaz Ali. On 10.10.2005 PC Ghulam Qadir produced blood stained clothes of the deceased to the I.O. He prepared such mashirnama in presence of the mashirs. On 12.10.2005, he arrested appellant/accused Mohammad Iqbal from Bhitai Nagar Bus stop in presence of mashirs Gul Hassan and Ali Nawaz. On 15.10.2005, during interrogation appellant admitted his guilt and prepared to produce crime weapon viz dagger, which he had hidden under the ground at abandoned godown. I.O on the pointation of the accused, secured it in presence of mashirs and prepared such mashirnama and sealed it. Thereafter, blood stained earth, clothes of the deceased and dagger were sent to the Chemical Examiner for analysis and report.

 

3.         On the completion of the usual investigation, Challan was submitted against accused under Section 302 PPC. Case was sent up to the Court of Sessions. Learned Additional Sessions Judge, Tando Adam framed the Charge against the appellant under Section 302 PPC. Appellant pleaded not guilty to the charge and claimed to be tried.

 

4.         In order to prove its case, prosecution examined the witnesses i.e. P.W-1 Tapedar Manglio Mal, P.W-2 complainant Mohammad Khan, P.W-3 mashir Ali Nawaz, P.W-4 Dr. Mohammad Ashraf Legahri, P.W-5 Ghulam Hussain, P.W-6 SIP Dur Mohammad, P.W-7 Inspector Haji Mohammad Hassan Malah Investigating officer. Thereafter, prosecution side was closed.

 

5.         Statement of appellant/accused was recorded under Section 342 Cr.P.C, in which appellant has denied the prosecution allegations. It is stated that he had not committed murder of deceased Qurban Ali and he had no quarrel with deceased over the parking of Chingchi. He has stated that he was not arrested on 12.10.2005, but he was produced by his relative Lal Muhammad before police two days after lodging of the FIR. He has further stated that dagger has been foisted upon him. P.Ws are interested, hostile and inimical to him. In reply to the question what else he has to say? He replied that he is innocent and he has been falsely implicated in this case by the complainant due to enmity.  P.W Mumtaz Ali, brother of deceased Qurban Ali had so many enemies. P.W Mumtaz Ali has criminal record and deceased was murdered in misunderstanding. However, appellant/accused did not examine himself on oath in disproof of prosecution allegations and no evidence in defence was produced. On the conclusion of the prosecution evidence, learned trial court assessed the evidence, convicted and sentenced the appellant as stated above.

 

6.         Mr. A.Q.Halepota learned Advocate for the appellant contended that prosecution story is highly unnatural and unbelievable. It was night time incident. There was no electricity. P.Ws are setup in this case. PW Ghulam Hussain was residing in a village at the time of incident. P.W Mumtaz is involved in a number of cases. He had close resemblance in the features to the deceased and deceased has been murdered by his enemies in mistake. Mr. Halepota has argued that eye witnesses have not given the probable cause of their presence in the street at the odd hours of the night. It is also argued that incident had taken place at 10:00 pm. According to the Medical Officer, stomach of the deceased was empty. According to Mr. Halepota food takes about 6 hours in digestion and deceased had taken meal at 8:00/8:30 pm as per evidence of prosecution witness. Medical evidence is contradictory to the ocular evidence. He has further argued that in the mashirnama of recovery of dagger it is not mentioned that it was blood stained and possibility that the crime weapon has been foisted upon the accused could not be ruled out. Lastly, it is contended that recovery of dagger was in violation of section 103 Cr.PC. In support of his contentions he has relied upon the cases reported as:

 

1.           Muhammad Akram Vs. The State (2009 SCMR 230)

2.           Khurshid Ahmad Vs. Kabool Ahmad and Others (PLD 1964 (W.P) Karachi 356)

3.           Abdul Sattar and others Vs the State (2002 PCr.LJ 51)

4.           Muhammad Amir alias Muskhi & 3 others Vs. the State (PLD 1977 Karachi 695)

5.           Ata Muhammad and another Vs. The State (1995 SCMR 599)

6.           Nawab and another vs. The State (1979 PCrLJ 736)

7.           Piaremian versus the State (1978 PCr.LJ 369)

8.           Muhammad Afzal alias Abdullah and others Vs. The State and others (2009 SCMR 436)

9.           Wahid Bux Versus the State (PLD 1963 (W.P) Karachi 837)

10.        Khan versus The Crown (PLD 1955 Sind 65)

11.        Ahmad and another versus The State (1977 PCr.LJ 662)

12.        Lalan and 2 others Versus The State (1976 PCrLJ 52)

13.        Rasool Bux and another versus The State (1980 SCMR 225)

14.        Charan Singh and others Versus State of Punjab (AIR 1975 Supreme Court 246 – 1974 CRI. L. J. 1253)

15.        Makhan and 3 others Versus the State (PLD 1977 Lahore 722)

16.        Ibrahim and another Versus the State (PLD 1969 Karachi 33)

17.        Mehr Ali and others versus The State (1968 SCMR 161)

18.        Muhammad Sadiq versus Muhammad Sarwar and 2 others (1979 SCMR 214)

19.        Nazir Muhammad alias Nazir Ahmed versus The State (PLD 1974 Karachi 274)

 

7.         In the case of Muhammad Akram 2009 SCMR 230 (supra) it has been observed as under:

“The nutshell of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace.”

 

8.         In the case of Khurshid Ahmad (Supra) it has been held as under:

            “There is also on record the evidence of Yasin Rajput PW.8, who is a member of the Shahpur Chakar Union Council and who on coming to the scene that evening learnt from the complainant Khurshid as well as the other Khurshid P.W.11 that the respondents were responsible for the attack made upon them. But, as neither the complainant nor Khurshid Ahmed P.W. 11 were asked when giving evidence as to whether they had at all met or spoken to Yasin that evening the evidence of P.W. Yasin as to who were responsible for this attack on the complainant party is clearly inadmissible in law.”

 

9.         In the case of Abdul Sattar (2002 PCrLJ 51) supra, it has been held as under:-

 

“Admittedly, in neither of the cases in hand Roznamcha entry was produced by the prosecution in order to prove that the police, in fact, proceeded to the place of scene to recover the alleged weapon. This lapse on the part of prosecution has cut the root of the case of prosecution, thus, rendering the entire episode shrouded by doubt. This fact by itself was enough to disbelieve the prosecution version.”

 

10.       In case of Muhammad Amir alias Mushki supra it has been observed as under:

“Contents of a mashirnama, do not constitute substantive evidence”

 

11.       In the case of Ata Muhammad supra, it has been observed by the Honourable Supreme Court of Pakistan as under:-

 

“The ocular evidence may be classified into three categories—firstly, wholly reliable; secondly wholly unreliable; and thirdly, partly reliable and partly unreliable. In the first category conviction may safely be sustained on uncorroborated testimony. In the second category, even strongest corroborative evidence may not rehabilitate such evidence. In the third category, conviction cannot be recorded unless such evidence is corroborated by oral or circumstantial evidence coming from distinct source. In the instant and the deceased suffered one fire-arm injury and Khizara suffered three fire-arm wounds caused by 12 bore gun. The possibility of three entry wounds caused by one shot from 12 bore gun is very much there. The number of the injuries of the deceased and the P.W. does not commensurate with the number of the accused named by the eye witnesses. In view of the aforesaid infirmities in the ocular evidence we feel that in the instant case the testimony of the eye witnesses falls within third category.”

 

12.       In the case of Nawab and another supra, it has been held as under:

“Although the appellants may have had a dispute over land with the deceased, as alleged by the first informant and        Mst. Alam Khatoon, were motive, howsoever strong, cannot provide corroboration to other pieces of evidence which are themselves infirm and not worthy of credence.”

 

13.       In the case of Piaremian supra, it has been held as under:

“In our opinion the discovery of revolver cannot be considered voluntary because it was after three days of the commission of offence that the revolver was discovered.”

 

14.       In the case of Muhammad Afzal alis Abdullah supra, it has been observed by the Honourable Supreme Court of Pakistan as under:

“12.     After taking out from consideration the ocular evidence, the evidence of identification and the medical evidence, we are left with the evidence of recoveries only, which being purely corroboratory in nature, in our view, alone is not capable to bring home charge against the appellant in the absence of any direct evidence because it is well settled that unless direct or substantive evidence is available conviction cannot be recorded on the basis of any other type of evidence, howsoever, convincing it may be.”

 

15.       In the case of Wahid Bux PLD 1963 (W.P) Karachi 837, supra, it has been held as under:

“In my opinion, be necessary for the purpose of deciding a to whether the statements the witnesses made in the committal Court were true or whether the statements they were making in the Sessions Court were false. In the event of there being admittedly no evidence in corroboration it will be unsafe to base the conviction solely on the statements brought on record under section 288 Cr.PC.

 

16.       In the case of Nazir Muhammad alias Nazir Ahmed, supra, it has been held as under:

“All the above circumstances create genuine doubts regarding the truth of the prosecution evidence which apart from being contradictory and being inherently incredible is also belied by the medical evidence as well as P.W. Jumo, mashir of the vardat, who is none else than the son of Shahbazi, the owner of the kiln where the prosecution witnesses worked and it would be extremely unsafe to place reliance thereon on capital charge.

 

17.       In the case of Muhammad Sadiq (PLD 1973 SC 469), supra, it has been held as under:

“As the recovery of the gun was made in brazen disregard of the mandatory provisions of the law, the recovery is of no evidentiary value whatsoever, therefore, it is not necessary to examine the other infirmities about this recovery on which the learned counsel for the accused relied and it is sufficient to observe that far from supporting the ocular evidence, this strange recovery cast doubt on the prosecution case, because to say the least, the investigation was conducted in a most deplorable manner.”

 

18.       In the case of Mehr Ali and others (1968 SCMR 161), supra, it has been held as under:

 “The omission to indicate on the plan where Haku and Patti the alleged eye-witnesses were, when the shooting took place, thus gains significance and reflects on the possibility that Haku and Patti were not there at all when the shooting took place.”

 

19.       In the case of Ibrahim and another (PLD 1969 Karachi 33), supra, it has been held as under:

“There was no quarrel with that proposition, but in view of the peculiar facts of this case we relied on the medical evidence only as an additional circumstance, because admittedly our conclusion in regard to the time of death of the deceased was supported by other evidence.” 

 

20.       In the case of Makhan and 3 others (PLD 1977 Lahore 722), supra, it has been held as under:

“The corroboration need not be any recovery of incriminating article from the accused but the circumstances of the case which may satisfy the mind of the Court that witnesses have spoken the truth may be taken as a corroboration of the interested and partisan evidence.”

 

21.       In the case of Charan Singh and others (AIR 1975 Supreme Court 246), supra, it has been observed by the Indian Supreme Court as under:

“Normally a vegetable diet containing mostly farinaceous food as usually taken by an Indian does not leave the stomach completely empty within six to seven hours after its ingestion.”

 

22.       In the case of Rasool Bux and another (1980 SCMR 225), supra, it has been Supreme Court as under:

 

“Now no doubt it might sometimes be difficult for the police to obtain independent witnesses as mashirs but if so, it is for the prosecution to explain how it could not obtain an independent witness as a mashir, and, in the instant case, neither of the Investigation Officers have explained why they were not able to find at least one independent person as a mashir.”

 

23.       In the case of Lalan and 2 others (1976 PCrLJ 52), supra, it has been held as under:

“On a capital charge, where the ocular evidence requires corroboration, it would, in my humble opinion, not be safe to rely on the evidence of a mashir, who was closely related to the party of the complainant; accordingly this appellant also has to be given the benefit of doubt.”

 

24.       In the case of Ahmad and another (1977 PCrLJ 662), supra, it has been held as under:

“As the evidence of the eye witnesses in the case is not of a type which could inspire confidence, and reliance on the same for the purpose of conviction was unsafe, it was necessary to seek some independent corroboration. In the circumstances of this case no independent corroboration is available and corroborative evidence coming from a source which obviously was not of such a nature, cannot again be safely relied upon. The case against the appellants is not proved beyond reasonable doubt and the appellants are, therefore, entitled to benefit of doubt.”

 

25.       In the case of Khan (PLD 1955 Sind 65), supra, it has been held as under:

“If then in such cases a statement is made to the police, by an accused in custody that he has concealed or kept the property in such and such a place and then the property is so found, then that statement would become admissible and provide unambiguous evidence. The formal and ambiguous word “produce” is commonly used in such mashirnamas without any amplification or explanatory details.”

 

26.       Mr. Ali Haider Saleem, A.P.G. argued that prosecution has examined two eye witnesses of incident. They were natural witnesses of the incident. Incident had occurred in front of the house of the complainant in the street. Incident had occurred at 10:00 p.m., it was not odd hour of the night. Appellant was not stranger to the eye witnesses and belonged to same Mohallah. Eye witnesses had no difficulty to identify him. He has further argued that prior to the commission of the offence there was quarrel between the deceased and the accused over the parking of Chingchi Rickshaw in front of the shop of appellant. He has further argued that medical evidence corroborates the ocular evidence. Contradiction regarding digestion of food as highlighted by defence counsel is no contradiction as digestion of the food depends upon the digestive system of every individual. He has further argued that blood stained dagger was also produced by the appellant and report of chemical examiner was positive. All the pieces of the evidence have been properly appreciated by the trial court and he has supported the impugned judgment. In support of his contentions he has relied upon the following reported cases

 

1.                  Ch. Muhammad Yaqoob and others Versus The State and others (1992 SCMR 1983)

2.                  Sh. Muhammad Amjad versus The State (PLD 2003 Supreme Court 704)

3.                  Anwar Shamim and another Versus The State (2010 SCMR 1791)

4.                  Zakir Khan and others versus The State (1995 SCMR 1793)

 

27.       In the case of Ch. Muhammad Yaqoob and others (1992 SCMR 1983), supra, it has been observed by the Honourable Supreme Court as under:

“The Court is to sift grain from chaff and, therefore, any contradiction or improvement or any other factor which may adversely reflect on the credibility of a witness, would not be by itself sufficient to reject the testimony as a whole of such a witness. The Court can rely upon a portion of the testimony of such a witness, if it is corroborated by other reliable evidence or circumstances”.

 

28.       In the case of Sh. Muhammad Amjad (PLD 2003 Supreme Court 704), supra, it has been observed by the Honourable Supreme Court as under:

 “Further, it is noted that as per Article 40, corresponding to section 27 of the Evidence Act, when any fact is revealed in consequence of information received from any accused in custody of a police officer, such information whether it amounts to a confession or not as it relates distinctly to the fact thereby discovered, may be proved. The information supplied by the appellant, under Article 40 ibid, relating to incriminatory articles is admissible.”

 

29.       In the case of Anwar Shamim and another (2010 SCMR 1791), supra, it has been observed by the Honourable Supreme Court as under:

“It is a settled principle of law that mere relationship between the witnesses and the deceased is not enough to discard their evidence. It is duty and obligation of the court for requiring corroboration of interested witnesses then it must first ascertain whether he saw the occurrence and was in a position to identify the accused and whether he should be believed without corroboration. The witnesses have faced lengthy cross-examination but their veracity cannot be shaken by the defence counsel. Both the courts below have come to the conclusion that their statements are of such a nature that their testimony must be given due weight and were believed. It is also settled law that if court is satisfied about the truthfulness of direct evidence then the requirement of corroborative evidence is not of much significance. Corroboration is not a rule of law but is that of prudence.”

 

30.       In the case of Zakir Khan and other (1995 SCMR 1793), supra, it has been observed by the Honourable Supreme Court as under:

 

“However, the rule laid down by this Court in respect of the evidence of interested witnesses is only a rule of caution. No doubt, judicial authorities are replete with instances where a more cautious approach was preferred by the Court while dealing evidence of a partisan witness but support in such case may be sought from other independent evidence. The same would nevertheless depend upon the circumstances of each case. However, mere relationship of a prosecution witness to the complainant or other prosecution witness cannot render his evidence unreliable unless it is established that he had motive to implicate the accused falsely in the case. Nothing can be spelt out from the evidence of the accused falsely.

 

From the perusal of prosecution evidence it appears that complainant Mohammad Khan has deposed that on 09.10.2005 at 10:00 pm, he along with P.Ws. Mumtaz Ali and Ghulam Hussain were standing. Qurban Ali was also standing at opposite side at the distance of 30 to 35 feet. Appellant Iqbal appeared with dagger in his hand and moved towards his brother Qurban Ali. Appellant Iqbal challenged Qurban Ali that he would not be spared on account of parking of Chingchi in front of his shop of Refrigerators. Complainant has stated that two daggers blows were inflicted by appellant Mohammad Iqbal to his brother. He asked appellant not to kill his brother but appellant ran away. Complainant and witnesses found that one dagger blow was received by Qurban Ali at his left lumber region and another blow on his head and his brother went unconscious. Complainant took the injured brother with the help of PWs Mumtaz Ali and Ghulam Hussain to the Hospital, but Doctor declared him as dead. Complainant gave information on phone to the P.S Tando Adam. Police immediately arrived and handed over the dead body to the Doctor for postmortem examination. Leaving dead body of his brother complainant went to police station on 10.10.2005 at about 01:30 or 02:00 a.m., lodged F.I.R. against accused and produced at Ex-8/A. In the cross-examination complainant has stated that place of wardat is surrounded by houses and shops. He along with P.Ws and deceased reside in one and same house. Deceased had taken night meal at 8:00 or 8:30 pm. He has denied the suggestion that there was close resemblance of the features of the Mumtaz Ali with deceased Qurban Ali. Complainant had shown ignorance that P.W Mumtaz Ali had received threats on account of criminal history. He has denied suggestion that some unknown persons had committed murder of Qurban Ali as they wanted to kill P.W Mumtaz. He has denied the suggestion that he was deposing falsely as deceased was his brother.   

 

31.       PW-Ghulam Hussain has stated that on 09.10.2005, he alongwith complainant and PW Mumtaz were standing near Hira Medical Centre, while deceased Qurban was standing at the road at the distance of 30 to 35 feet from the Hira Medical Centre. It was 9:30 p.m. when appellant Iqbal attacked upon him while saying that he has exchanged hot words with him in the evening and declared that he would not be spared, while saying so, he has stated that the appellant inflicted dagger blow, which hit him at left lumber region, he raised cries and fell down, appellant made escape good alongwith dagger. He alongwith complainant and PW Mumtaz shifted the injured to the hospital, but the deceased died. In cross-examination, he has replied that the place of wardat is surrounded by medical stores and Hira Medical Centre, which remained opened round the clock, however, he has denied the suggestion that PW Mumtaz is a criminal person, but admitted that cases were registered against him, in which he is facing trial. He has also admitted that Qurban and Mumtaz are brothers inter se and their features resemble. He has denied the suggestion that he was not present at the time of incident and denied for deposing falsely in this case.

 

32.       PW-Ali Nawaz has stated that on 09.10.2005, he was made as mashir of the inspection of dead body of deceased Qurban Ali at Taluqa Hospital, Tando Adam by Tando Adam police. Clothes of the deceased were blood stained. Mashirnama of the inspection of dead body was prepared in his presence and co-mashir was Gul Hassan. He has further stated that I.O. collected clothes of deceased in the hospital in his presence, he was made as mashir of blood stained clothes, co-mashir was same. He has stated that I.O. inspected the place of wardat in his presence, which was shown by the complainant, situated near Hira Hospital in the street leading to the house of the complainant. Blood stained earth was collected and sealed, mashirnama of the place of wardat was prepared, he acted as mashir, co-mashir was same. He stated that appellant/accused Mohammad Iqbal son of Abdul Haq Makrani was arrested on 12.10.2005 at Bhittai Nagar Bus stop, Tando Adam and his personal search was conducted, nothing was recovered, mashirnama of arrest was prepared, he acted as mashir, co-mashir was same. He has deposed that on 15.10.2005, appellant lead police and mashirs to a wall of godown near Railway Station, Tando Adam, where he had concealed blood stained dagger and produced the same to the I.O. in presence of mashirs, such mashirnama was prepared. He has stated that he acted as mashir, while co-mashir was same. In cross-examination, mashir Ali Nawaz has admitted that complainant is his maternal cousin. He has also admitted that place of recovery of the weapon is surrounded by houses and godowns and persons of the area had gathered at the time of recovery. However, he has denied the suggestion that he had signed the mashirnama at police station. He has also denied the suggestion for deposing falsely against the appellant at the instance of the complainant.

 

33.       Manglio Mal, Tapedar, Tando Adam has deposited that he had prepared a sketch of the place of wardat of this case. Place of wardat was shown to him by the complainant Mohammad Khan. He has deposed that he had taken the measurement of the relevant points, prepared such sketch and produced the same in evidence as Ex.6/A. In cross-examination he has admitted that place of wardat is situated on the road, which leads to the town and the same is surrounded by so many shops and Hira Medical Centre.

 

34.       Dr. Mohammad Ashraf Leghari, Medical Officer has deposited that on 09.10.2005 at 10:20 p.m, he received dead body of a male, aged about 26 years, through SHO, PS Tando Adam for conducting postmortem examination of the deceased. He started postmortem at 11:40 p.m. and finished at 1:30 a.m. On external examination of the dead body, Medical Officer found the following injuries:-

One stab wound 03.05 c.m. x 1 c.m. x cavity deep on left axillary region of chest at the level of 07th and 9th rib. The second injury was lacerated wound 0.2 c.m. x 0.4 c.m. x scalp deep on left parieto frontal region.

 

On internal examination, Medical Officer found the following injuries: -

Left pleura, left lung, left ventricle of the heart are punctured. Thoracic cavity is full of blood. Right lung and right pleura are healthy. Stomach contained digestive secretions, other organs were healthy.

 

In the opinion of the Medical Officer, cause of death was hemorrhage and shock due to punctured wound of heart, caused by sharp cutting weapon like dagger. Injury No.1 was sufficient to cause death of the deceased.

 

Evidence of the Medical Officer goes unchallenged and unrebutted in the cross-examination.

 

35.       Haji Mohammad Hassan Mallah, I.O. of the case has stated that on 10.10.2005, he had received copy of the F.I.R. of this case for investigation purpose alongwith inquest report of deceased Qurban Ali. He went to the house of the complainant situated near Rajput street, near Hira Hospital, Tando Adam. He has deposed that on the pointation of complainant he inspected the place of wardat. He collected bloodstained earth from the place of wardat and sealed the same in presence of mashirs Gul Hassan and Ali Nawaz and prepared such mashirnama. He also recorded 161 Cr.P.C. statements of PWs Ghulam Hussain and Mumtaz Ali on the same day. On 10.10.2005, PC Ghulam Qadir produced clothes of the deceased before him, the same were blood stained. He prepared the mashirnama in presence of same mashirs. He deposed that on 12.10.2005, he arrested the appellant Mohammad Iqbal from Bhittai Nagar bus stop in presence of mashirs Gul Hassan and Ali Nawaz and prepared such mashirnama. On 15.10.2005, during interrogation, accused/appellant admitted the guilt and volunteered to produce crime weapon, concealed by him under the ground at godown. He has stated that he called mashirs and proceeded to the pointed place by making such entry in the record. Appellant led the police to old godown from where by digging the earth appellant recovered the dagger used by him in the commission of offence. He prepared mashirnama of the recovery of dagger in presence of mashirs and sealed the same. He has stated that blood stained earth, clothes of the deceased and dagger produced by the accused, were sent by him to the Chemical Examiner for examination and report. On the conclusion of the investigation he submitted challan against the appellant. In cross-examination, I.O. has admitted that place of wardat is situated near Hira Medical Centre and Rajput Street is a common street. He has denied suggestion that no blood stained earth was collected from the place of wardat. He has also denied the suggestions that dagger was not produced by the accused and the investigation was not carried by him fairly.  

 

36.       We have carefully examined / scrutinized prosecution case based upon ocular testimony furnished by complainant Muhammad Khan and P.W. Ghulam Hussain. Evidence of both eyewitnesses is trustworthy and reliable. Complainant has highlighted each and every aspect of the case. Presence of the complainant at place of incident was natural as incident had occurred outside of his house in the street. Another eyewitness namely Ghulam Hussain has also given probable cause of his presence in the street at the time of incident. He is closely related to complainant. It was not strange that he came from village Khaskheli to meet complainant. There is no legal force in the contention of the learned defence counsel that it was night time incident and source of identification has not been disclosed. It is the matter of the record that appellant is neighbourer of complainant, the manner in which they have given the evidence, we believe that eye witnesses had no difficulty to identify accused at the time of incident. Complainant and P.W. Ghulam Hussain had no previous enmity or motive to falsely implicate the appellant in this case. Therefore, we see no reason to disbelieve such strong ocular evidence. Prosecution has also succeeded to prove the motive against the appellant for commission of the offence. Prior to the incident, there was quarrel between the deceased and appellant over parking of rickshaw/chingchi. Evidence of the prosecution witnesses on the point of motive is fully established. Both the eyewitnesses have categorically deposed that appellant caused dagger blows to the deceased, which resulted in his death. Ocular evidence is corroborated by medical evidence on all material points. As regards to the contention of the learned defence counsel that medical evidence is contradictory to the ocular evidence as PW Muhammad Khan has stated that deceased had taken night meals on at 08:00 p.m. or 08:30 p.m. and Medical Officer in the postmortem report has mentioned that stomach of deceased contained digestive secretions and large and small intestine were found empty. Deceased was a young person and digestive system of every person varies. Medical evidence can only establish the type of weapon used, seat of injuries and nature of injuries. Medical evidence has been produced by prosecution in support of ocular evidence. Variations of such nature as highlighted by Mr. Halepota, learned counsel for the appellant would not be fatal for the prosecution case for the reasons that in this case ocular evidence is coherent and trustworthy. Medical evidence will not over weigh such confidence inspiring evidence. Even otherwise, complainant has not stated whether deceased had taken vegetable diet or meat. Reliance can be placed upon the case of Sarfraz alias Sappi and 2 others versus the State (2000 SCMR 1758), relevant portion is reproduced as under:

 

“Here we also invoke another principle of law namely that medical and expert evidence is produced in support of ocular evidence by the prosecution in the criminal trial or in other words it can be said that such evidence is termed to be of confirmatory nature. Therefore, if there is any variation both in ocular and medical evidence the latter will not overweigh the former type of evidence if otherwise it is coherent and trustworthy. Reliance in support of this principle is placed on the case of Muhammad Hanif v. The State (PLD 1993 SC 895)”

 

Therefore such contention is without any legal force. Another contention of learned defence counsel that prosecution witnesses are related inter se is also no ground to rejected their testimony. It is settled principle of law that mere relationship between the witnesses and the deceased is not enough to discard their evidence. Both the eye witnesses were subjected to lengthy cross-examination but nothing favourable to    the appellant came on record. This Court is satisfied about the truthfulness of direct evidence, furnished by two eyewitnesses who had no motive to falsely implicate the appellant, residing in same area. Moreover, ocular evidence is corroborated by medical evidence, motive and recovery of the dagger from an abandoned place, which was in exclusive knowledge of the appellant. Recovery of dagger during police custody within 03 days of his arrest on the information of appellant/accused is admissible in evidence as per Article 40 of the Quanun-e-Shahadat Order 1984 as held in the case of Sh. Muhammad Amjad versus the State (PLD 2003 Supreme Court 704):

 

“Further, it is noted that as per Article 40, corresponding to section 27 of the Evidence Act, when any fact is revealed in consequence of information received from any accused in custody of a police officer, such information whether it amounts to a confession or not as it relates distinctly to the fact thereby discovered, may be proved. The information supplied by the appellant, under Article 40 ibid, relating to incriminatory articles is admissible.”

 

The report of the Medical Examiner with regard to the bloodstained dagger is also positive. Contradictions as highlighted by learned defence counsel in prosecution evidence are of minor in nature, the same are bound to occur after lapse of time. Such minor contradictions would not be fatal to the prosecution case. Mr. Halepota again and again argued that after the incident complainant gave information of the incident to the concerned police, but such entry has not been produced in the evidence. From the scrutiny of the evidence, it transpires that learned defence counsel did not ask question regarding such roznamcha from the I.O. nor insisted for production of such entry before the trial Court. Complainant has produced F.I.R. in the evidence. He has been cross-examined at length, but his veracity could not be shaken by defence counsel. Case law relied upon by the A.P.G. is quite applicable to the circumstances of the case.

 

37.       We, therefore, hold that prosecution has proved its case against the appellant beyond any shadow of doubt and learned trial Court has rightly appreciated the evidence. Honourable apex Court has time and again observed that if charge of qatl-e-amd is proved against the culprit normal penalty of the death should be awarded and leniency in any case should not be shown except where strong mitigating circumstances for lesser sentence are brought on record. Reliance can be placed upon case of Miss Najiba and another versus Ahmed Sultan alias Sattar and 2 others (2001 SCMR 988) in which honourable Supreme Court of Pakistan was pleased to observe that when in the case involving capital punishment prosecution proves its case, Court is duty bound to impose deterrent punishment to make evil doers an example. Relevant observations are reproduced as under:

“10.     It is obvious from the above cited case law that it has been consistently held that when prosecution proves its case beyond any doubt then it is the legal duty of the Court to impose deterrent punishment on the offenders to make the evil doers an example and a warning to the likeminded people. Despite the fact that the crime is increasing in the society yet the Courts normally avoid to award normal penalty of death in offences punishable with death which amounts to gross miscarriage of justice whereas the Courts are duty bound to do complete justice with both the parties. It has been observed with great concern that whenever people fail to get due justice from the Court of law, they resort to take the law in their own hands to settle their matters themselves. Such a situation is very alarming and it is the need of the hour that the Courts should hold the scale of justice even in dispensation of justice to the parties. In offences punishable with death, the normal penalty prescribed by law is death sentence, however, in cases where there are mitigating or extenuating circumstances warranting lesser punishment, the Courts while awarding lesser punishment have to record reasons justifying the same. In the present case so far as question of sentence is concerned, both the trial Court and the High Court have failed to record reasons for awarding lesser punishment to the respondents, who committed preplanned triple murder in a very brutal and gruesome manner and buried the dead bodies in the houses, where they were killed. Till the time of disclosure of murders by the respondents themselves in their confessional statements, it was not known to anybody that they had killed three persons namely, Engineer Fahim, Mst. Kishwar Kamal alias Laila and Syed Faqir and their dead bodies had been buried in the houses, which were recovered at their instance from the places specified in the confessions, in presence of the Magistrates. Keeping in view the findings of both the Courts below that the prosecution has proved its cases against the respondents beyond any shadow of doubt, they did not deserve any leniency in sentence in premeditated cruel triple murder.”

 

This is a case of preplanned and pre-mediated cruel murder, no mitigating circumstances have been pointed out. Authorities relied upon by Mr. A.Q. Halepota, learned defence counsel are quite distinguishable from the facts and circumstances of this case.

 

38.       In our considered view, circumstances of the case disentitle appellant Muhammad Iqbal to any leniency in the sentence. We are duty bound to do complete justice with both parties. Appellant, therefore, deserves normal penalty of death which has been rightly awarded to him by learned trial Court. We, therefore, for the above said reasons while relying upon the case law cited by learned A.P.G. maintain conviction and sentence awarded to appellant and confirm the death sentence awarded to him. Reference made by learned trial Court is answered in affirmative and appeal is dismissed.

                                                                                                           

                                                                                                JUDGE

 

                                                JUDGE

 

Gulsher/PA