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Petitioner: BEHRAM VS Respondent: The STATE
Court Name: Sindh High Court Judge(s): Sajjad Ali Shah, Salahuddin Panhwar Title: BEHRAM vs The STATE Case No.: Criminal Appeal No.217 of 2009 Date of Judgment:2014-03-06 Reported As: 2015 YLR 150 Result: Appeal dismissed
JUDGMENT
JUDGMENT SAJJAD ALI SHAH, J.---The appellant Bahram along with co-accused Moran was arrested on 20- 6-2005 in Crime No.35 of 2005 of Police Station Karampur, District Kashmor for offence under sections 302, 324, 148, 149 P.P.C. And was sent up for trial. After regular, trial, the learned Additional Sessions Judge, Kandhkot through judgment dated 5th October, 2009, while acquitting the co- accused Moran, convicted the appellant and sentenced him to death under section 302(b) P.P.C. Thus appellant has impugned the conviction through instant appeal, whereas the trial Court has sent a Reference (No.1 of 2010) under Section 174, Cr.P.C. For confirmation of death sentence. 2. Per prosecution, on 11-6-2005 at 2000 hours complainant Javed Akbar lodged F.I.R. At Police Station Karampur, District Kashmor; stating therein that they used to cultivate the lands of Imam Bux Jafferi. On 11-6-2005, when he along with his brothers Sabz Ali, Abdul Qadir was irrigating their lands situated in Deh Jamal, where at about 07.00 p.m., accused Mooran, Bahram both sons of Sher Dil, Ghulam Mustafa alias Bagi, Sher Dil and Dil Murad all sons of Bahadur came there. The accused Sher Dil was having a spade, while rest of the accused persons were armed with guns. Immediately after their arrival, they asked complainant party to stop irrigating their lands as they would first irrigate their lands, to which Sabz Ali objected, upon which they had altercation. Thereafter, the accused Moran caused direct fire upon Sabz Ali, which hit him and he fell down, accused Ghulam Mustafa also fired at Sabz Ali which also hit him, accused Bahram also fired at Sabz Ali. Accused Dil Murad with intention to kill directly fired on the complainant Javed Akber, but he saved himself by falling on the ground and the fire hit accused Moran, who fell down. Since the complainant party was empty handed and fearing of their lives, they remained silent and when all the accused persons took away injured accused Moran towards Eastern side, the complainant
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party saw that Sabz Ali sustained fire arms injuries at his chest, abdomen, both legs and other parts of body, blood was oozing from injuries and was dead. The complainant after arranging transport brought the dead body of Sabz Ali at police station, seeking registration of a case. 3. The appellant Bahram along with co-accused Moran was arrested, and arraigned. After complying with the provisions of section 265-C Cr.P.C. Charge at Exh.4 was framed on 13-6-2007 against both the accused to which they pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined P.W.1 Shah Nawaz as Exh.6, P.W.2 complainant Javed Akbar as Exh.7, who produced F.I.R. As Exh.7/A, receipt of receiving dead body as Exh.7/B. P.W.3 Abdul Hafeez as Exh.8 who produced inquest report of deceased as Exh.8/A and mashirnama of inspection of place of incident as Exh. 8/B, mashirnama of arrest of both accused as Exh.8/C, mashirnama of recovery of crime weapon on the pointation of accused persons as Exh.8/D, mashirnama of examination of dead body as Exh.8/E. P.W.4 Ali Hassan as Exh.9 who produced sketch of place of incident as Exh.9/A. P.W.5 SIP/SHO Sono Khan as Exh.12 who also produced inquest report of deceased as Exh.12/A. P.W.6 PC Ali Nawaz as Exh.13. P.W.7 SPO Shamsuddin as Exh.14 who produced Entry dated 29-6-2005 as Exh.14/A. P.W.8 Dr. Muhammad Siddiq, MLO who conducted post mortem on the dead body of deceased as Exh.15 who produced post mortem report as Exh,15/A. .Thereafter vide statement as Exh.19 prosecution closed its side. 5. Statements of both the accused were recorded under section 342, Cr.P.C. Wherein they denied all the allegations levelled against them and further stated that they have been falsely implicated by the complainant due to enmity. However, they did not examine themselves on oath nor led evidence in their defence. 6. Mr. A. Q. Halepota, learned counsel for the appellant contended that the conviction in the instant case is mainly based on the testimony of two alleged eyewitnesses namely Shah Nawaz (P.W.1) and Javed Akbar (P.W.2) whose presence on the scene of crime, keeping in view material contradiction in their testimony, appears to be highly doubtful. While referring to the evidence pointed out that Javed Akbar (P.W.2) attributed firm arm injury on the chest of the deceased to the appellant, whereas according to Shah Nawaz (P.W.1) such injury was inflicted on chest, abdomen, bladder and thigh. It was next contended that the evidence of both the alleged eye-witnesses does not inspire confidence and is not worthy of credence on account of acquittal of co-accused Moran and letting off of another co-accused Sher Dil by the police specially when the complainant's application under section 193 Cr.P.C. Was rejected by the trial Court. It was next contended that the complainant Javed Akbar in his examination-in-chief stated that he along with his brothers Shah Nawaz and Abdul Qadir took the dead body to the police station, per counsel had it been true and they were present at police station there is no reason why their 161, Cr.P.C. Statements were not recorded by police on that very day and non- recording of their 161, Cr.P.C. Statements on the very day of incident belies their statement. 7. According to the learned counsel, trial Court erred in convicting appellant as on the basis of same set of evidence co-accused Moran was acquitted and against his acquittal neither the State nor the complainant filed any appeal; that P.W.5 A.S.-I. Sono Khan stated that he had collected five empty cartridges of .12 bore in presence of mashirs from the place of incident but in the trial Court only three empties were shown as case property and the mashirnama of scene of offence Exh.8-B reflects the figure of 5 empty shells has been changed to figure of 3, which interpolation is patently visible. Appellant as well as the acquitted accused are real brothers and sons of Sher Dil, the let off accused and live together; the incident took place on 11-6-2005, whereas, the guns were allegedly produced by the appellant as well as the acquitted accused from their house on 29-6-2005 which is totally unbelievable as no one after committing murder would keep the crime weapon at his house. It was lastly contended that neither the guns nor empties were sent to Forensic Expert, therefore, their production is of no consequence. To support his contention that conviction could
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not be based on the evidence on which one accused was acquitted, reliance has been placed on the judgments of the apex Court on the case of Muhammad Shah v. The State (2010 SCM R 1009), Abid Ali and others v. The State (2011 SCM R 208) Muhammad Sadiq v. Muhammad Sarwar and others (1979 SCM R 214), Muhammad Yunus v. The State and another (1979 SCM R 225) and Ata Muhammad v. The State (1995 SCM R 599), Ahmed v. The State (1982 SCM R 1049). 8. On the other hand, learned Assistant Prosecutor General contended that the judgment under appeal is well reasoned and therefore does not require any interference; It was a broad-daylight cold blooded murder of the victim, committed by the appellant, eliminates the chances of mistaken identity. The ocular account of the incident given by the prosecution witness fully corroborates with the medical evidence. The record further does not reflect anything to assume false involvement of the appellant/convict in the instant case the complainant party being real brother of the deceased; therefore, the question of false involvement does not arise. Per Prosecutor, there are no material contradictions in the testimonies of both the eye-witnesses, who despite lengthy cross-examinations have remained steadfast on their confidence inspiring evidence, therefore, the appeal be dismissed. 9. We have heard the ltarned counsel for the respective parties at length, have minutely scrutinized the record and have perused the case-law cited at bar. 10. According to the prosecution the incident in the present case had taken place on 11-6-2005 at about 7.00 p.m. At the lands of the complainant situated in Deh Jamal where the accused party attempted to divert water to their lands and after an altercation which consumed 10/15 minutes, the accused party shot Sabz Ali who upon sustaining fire arm injuries died on the spot. P.W.1 Shah Nawaz and P.W.2 Javed Akbar (complainant) real brothers of the deceased Sabz Ali have deposed that they were the eye-witnesses of the incident and were present on the spot at the time of incident. The place of incident was at a distance of 12 kilometers from police station and after the incident P.W.2 went to hire Datson which consumed 10/15 minutes whereafter the dead body of the deceased Sabz Ali, was taken to the Police Station Karampur where at the instance of P.W. Javed Akbar the F.I.R. Was recorded on the same day at 8.00 p.m. Thereafter the dead body was referred to MO RHC Karampur for post mortem. Post mortem report reflects that the examination of dead body commenced on the same day at 9.15 p.m. And ended at 10.15 p.m. The postmortem report states that time between the injury and death was "INSTANTANEOUS" and between death and post mortem "about 2 hours 15 minutes" which affirm the time of incident to be 7.00 PM. The promptness with which the F.I.R. Was lodged not only eliminates the chances of consultation but also of false implication. Besides this, it is an admitted position that both eye-witnesses are real brothers of the deceased and there had been pleaded no such enmity or consideration which could motivate real brothers to substitute real culprits with appellant. In absence of such a motive or consideration plea of substitution by a blood-relation cannot sustain. Further, it is an admitted position that both the prosecution witnesses, who have given the ocular account, are the real brothers of the victim and were present at the spot, had no reason whatsoever to substitute the appellant by letting off the real culprits. Further the precision with which the ocular account was given by the P.Ws. 1 and 2 whereby the manner of incident; the time between the incident and F.I.R. Accounted for does not permit us to believe that incident was unseen one or that blood-relation could be believed to have involved innocents in a promptly lodged F.I.R. Because the emotions of the complainant (blood relation) do not permit substitution in promptly lodged matter. However, since burden always remains upon the prosecution to establish the ocular account, therefore, let's examine the ocular account. 11. To prove ocular account, the prosecution produced P.W.1 Shah Nawaz and P.W.2 slaved Akbar, both are the real brothers of the deceased Sabz Ali and have testified as follows:-- P.W.1 Shah Nawaz
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"About three years back I, Sabz Ali, Javed, Abdul Qadir were irrigating the seed of rice crop at the land of Master Imam Bux Jaffer at 07/00 p.m, when accused Sher Dil having spade, accused Moran, Ghulam Mustafa, Bahram and Dil Murad having guns came there and asked us that they will block the water flowing in our land for irrigating rice crop. My brother Sabz Ali asked them that after when our land is irrigated then they can flow the water in their land, on which they have exchange hot words and accused Mohran caused straight fire shot upon Sabz Ali which hit over his chest, accused Ghulam Mustafa alias Bagi also fired upon Sabz Ali over his abdomen, accused Bahram also fired with his gun upon Sabz Ali which hit over his bladder. Accused Dil Murad also fired at my brother Javed but the same was missed and hit accused Mohran, then the remaining accused at once shifted Mohran towards North by foot. We found injuries over the person of Sabz Ali were bleeding and was died: My brother Javed hired a Datsun, wherein we have shifted the dead body and brought at Police Station Karampur, where from police referred the dead body to M.O. RHC Karampur for post mortem and report. After post mortem we have brought the dead body at our village. After funeral next day in the morning police came at our village and inspected the place of incident. My statement under section 161, Cr.P.C. Was recorded by police. Accused Mohran and Bahram present in Court are same. Accused Ghulam Mustafa and Dil Murad are still absconders." P.W.2 Javed Akbar "On 11-6-2005 at about 7.00 p.m. I along with my brother Shah Murad, Abdul Qadir and Sabz Ali were watering paddy seeds. Accused Sherdil armed with spade, Moran armed with gun, Behram armed with gun, Ghulam Mustafa alias Bagi armed with gun, Dil Murad armed with gun came there and asked that they will close water to our paddy seeds and will divert water to their paddy seeds. On which my brother Sabz Ali restrained the accused from closing the water flowing in our paddy seeds. On which accused exchanged harsh words with my brother Sabz Ali and abused him. Accused Moran caused fire shot injuries to my brother Sabz Ali on his chest, my brother raised cries and fell down on the ground. Accused Ghulam Mustafa alias Bagi also caused fire shot injury to my brother Sabz Ali in his chest. Accused Bahram also caused fire shot injuries to my brother Sabz Ali on his chest. Accused Dil Murad made fire on me with intention to murder me but it was missed, as I had fell down on the ground, the fire shot made by accused Dil Murad on me hit to accused Moran. Accused Moran on sustaining fire shot raised cries and fell down on the ground. Other accused took accused Moran and went towards Northern side. Then I and my brother Shah Murad Abdul Qadir went to our brother Sabz Ali and saw him that he had died due to injuries. I left my brother P.Ws Shah Murad, Abdul Qadir over the dead body of my deceased brother Sabz Ali, and I went to Police Station Karampur where I lodged the F.I.R. I produce F.I.R. At Exh.7-A it is same, correct and bears my signature. My brothers P.Ws. Shah Murad and Abdul Qadir and I myself had taken dead body to P.S. By Datson, thereafter I had lodged the F.I.R. And thereafter police had referred the dead body of my deceased brother Sabz Ali to RHC. Karampur for post mortem. Doctor conducted post mortem over dead body of my brother Sabz Ali, thereafter the dead body was handed over to me by Doctor, we took dead body to our village. I produce the receipt of receiving the dead body of my deceased brother as Exh.7-B, it is same, correct and bears my signature. I had shown the place of vardhat to police on the next day of incident. Accused Moran and Behram present in Court are same, while other accused Ghulam Mustafa alias. Bagi, Dil Murad, Sherdil are not present in Court and are absconders." 12. The scrutiny of ocular account B furnished by both the eye-witnesses viz-a viz F.I.R. Is found very consistent so far as the name' of assailants; manner of their arrival; altercation resulting into unfortunate death of deceased: and their role is concerned. Both the eye-witnesses categorically stated that accused Moran, Behram, both sons of Sherdil, Ghulam Mustafa alias Bagi Sherdil and Dil Murad all sons of Bahadur came at their lands, the accused Sherdil was having spade, while rest of the accused were armed with guns. #They further stated that Moran, Behram and Ghulam
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Mustafa alias Bagi caused fire shot injuries to their brother Sabz Ali. They further stated that Dil Murad fired at P.W.1 Javed Akbar which missed and hit accused Moran who fell down and the remaining accused took Moran towards Eastern side. Thus a close scrutiny of the ocular account, brought on record through evidences of these witnesses, shows that both the eyewitnesses remained strongly stuck with each other in respect of every single detail of incident and despite a lengthy test of cross examination the defence could not succeed to shake these witnesses on material aspects which could be termed as a 'contradiction' effecting the very evidence of these witnesses. 13. It has been pleaded that the ocular account of the incident given by the prosecution witnesses contains material contradiction and was partially disbelieved by the trial Court, therefore, capital punishment on such ocular evidence cannot sustain unless corroborated with circumstantial evidence. At this juncture it would be relevant to endorse that variations in statements of witnesses, which are neither material nor seriously affect the case of the prosecution, cannot be termed to be 'contradiction'. On this touchstone, we would like to compare the ocular evidence of both the eye-witnesses to find out as to whether there is any `contradiction' in their evidence affecting the case of prosecution or otherwise with regard to the names of the assailants, the weapons with which they were armed, the seat of injuries and role assigned to the accused persons. 14. Though, both the eye-witnesses categorically contended that deceased Sabz Ali sustained three gun shots, but *according to P.W. Shah Nawaz the seat of injuries were (i) chest, (ii) abdomen and bladder, (iii) thighs, whereas, according to P.W. Javed Akbar the deceased sustained all the three gun shots on his chest. In our opinion this could not be termed as contradiction because it could, at the most, be a difference of observance and expression. The witnesses have supported each other not only in respect of manner of incident but the role, played by each of the culprits, therefore, mere difference of place of seating of injuries cannot be taken to disbelieve the evidence of witnesses nor can such variation be legally taken as 'contradiction'. It is not the requirement of the law that a witness must give exact location or place of seating because a single view may bring different picture for two, viewing the same from different places/ points. Moreover, in the given circumstances when the deceased was shot at by the accused persons as seriatim, thus it would be very difficult to ascertain the exact seat of gunshot as the pallets spread all over the body. The evidence of these two witnesses fully corroborate with the postmortem report which reflects that deceased had suffered 46 pallet injuries on his chest, 37 pallet injuries on his abdomen/ bladder, 45 pallet injuries on his thighs and 5 pallet injuries on his penis and testicles. In the circumstances, we are of the view that the dissimilarity of ocular accounts to the extent of seating of injuries is of no consequence at all for defence to claim the same as a 'material contradiction'. 15. It was next contended that the trial Court by disbelieving the ocular account, given by these two eye-witnesses, acquitted co-accused Moran but on the same evidence convicted present appellant, which was contrary to settled principles of evidence as enunciated by the Apex Court in the case of Atta Muhammad (supra) and Ahmed and others (supra). The reason and the evidence which led the trial Court to disbelieve the ocular account to the extent of co-accused Moran was that both the eye-witnesses in their evidence stated that accused Dil Murad (absconding accused) fired on P.W. Javed which missed and hit co-accused Moran and then remaining accused shifted accused Moran towards North, whereas P. W .7 Shamsuddin, the second Investigating Officer, deposed that "when accused Moran was arrested by me, he had no injuries on his person". In order to examine this contention, we have minutely scrutinized the ocular account given by both the witnesses which reflect that they in their evidence have categorically stated that co-accused Dil Murad fired on P.W. Javed which missed and hit accused Moran but there was not
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a single suggestion denying that the accused Moran did not suffer any fire shot injury, though following questions were specifically put to P.W. Shah Nawaz:- (1) We had also narrated to the people that accused Moran had also sustained fire shot injuries; (1) I cannot say that on what part of body accused Moran had sustained fire shot injuries; (2) I do not know wherefrom accused Moran had got treatment. ' It appears to be very strange that despite explicit deposition of both the eye-witnesses regarding injury sustained by co-accused Moran, not a single Suggestion denying such injury came from defence, which lead us to believe that the statement of the Investigating Officer may be an obliging one, Not only this, but the defence never attempted to bring anything on record to establish such claim. Here it is worth to make clear that the prosecution witnesses were/are always required to depose what they see/observe; prosecution is to prove its own case by going on line of its case which prosecution did by sticking with what they observed to extent of falling of acquitted accused Moran and his removing from place of incident by his companions. In such eventuality, the burden was upon the defence to have proved otherwise as per Article 119 of the Qanun-e- Shahadat Order, 1984 but it is evident that despite such specific claim of the prosecution the defence did not make any attempt to resort to such course. The words of an investigating officer cannot be allowed to prevail over the words of the eye-witnesses particularly when acquitted accused Moran was arrested after nine (9) days of the incident. The words of the investigating officer that at time of arrest the accused Moran was not injured have never been claimed to be after examination of body of acquitted accused Moran by him (investigating officer) or by any medical officer, therefore, such words of the investigating officer cannot be taken to have destroyed the prosecution case or for disbelieving the testimony of blood relation, who otherwise, have stuck with each other in respect of every detail of the incident. Furthermore, the failure of the defence to cross-examine the prosecution witnesses on such a vital portion of their testimony amounts to an admission on the part of defence that Moran suffered gun shot injury may be a single pallet. Reference can be made to the case of Sheraz Tufail v. The State (2007 SCM R 518). Lastly, neither any logic is assigned nor any reason is advanced for levelling such false accusations against absconding' accused Dil Murad as the statement of the eye-witnesses that "accused Dil Murad fired at P.W. Javed which missed and hit accused Moran". The words "hit accused Moran" which after finding in conflict with the statement of Investigating Officer resulted in acquittal of co- accused Moran, did not add any strength to the case of the prosecution. 16. We are fully conscious of the fact that in our society there is trend of widening the net of prosecution by falsely implicating the near relatives of the principal accused, but such could only be possible when the plea of deliberation succeeds. In the instant case time between the incident and registration of the F.I.R. Is only one hour and that too is fully explained as 10/15 minutes were consumed in altercation resulting in firing and death of the victim and next 10/15 minutes were consumed in hiring vehicle on which dead body was taken to police station which was at a distance of 12 kilometers and consumed 20/30 minutes. The promptness in lodging the F.I.R. Negates the theory of deliberation and false implication and does not permit us to believe that the statement of both the [eye-witnesses, being blood-relation of the deceased,] on this fact was false. 17. It was next argued that the release of one of the co-accused i.e. Sher Dil during investigation and dismissal of prosecution application for his joining adversely reflects on the part of the prosecution and shows that the complainant has falsely added the accused and therefore, capital punishment on the basis of ocular testimony of prosecution witness unless corroborated independently cannot sustain. Meticulous examination of the record reveals that though the presence of co-accused Sher Dil with spade in, his hands was specifically mentioned in F.I.R., but he was released by the Investigating Officer on the basis of statement made by the Defence
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witnesses, however, it is also a matter of record that such letting of was not swallowed by the complainant party but an application, seeking joining of such let-off accused, was moved under section 193, Cr.P.C. With specific allegation that the. Investigating Officer released the co-accused Sher Dil after accepting bribe. The record further shows that Notices as well as coercive mode was adopted to serve co-accused Sher Dil but (despite) he did not appear. We believe that non- appearance of the accused Sher Dil was deliberate one because it cannot be believed that he was not aware with pending proceedings as both his sons were in custody and were being tried, however,…
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