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Petitioner: MITHAL VS Respondent: THE STATE
2001 P Cr
2001 P Cr. L J 1408
[Karachi]
Before Muhammad Ashraf Leghari, J
MITHAL and another‑‑‑Appellants
versus
THE STATE‑‑‑Respondent
Criminal Appeal No.97 of 1998, decided on 21st December, 2000.
Penal Code (XLV of 1860)‑‑‑
‑‑‑‑S. 302/34‑‑‑Appreciation of evidence ‑‑‑F.I.R. had been lodged promptly within one hour of the occurrence which had taken place in broad daylight‑‑ Eye‑witnesses including the complainant who were natural witnesses of the incident had attributed specific hatchet injuries to the accused and their testimony could not be discarded merely for the reason of their being interested witnesses‑‑‑Ocular evidence was supported by medical evidence and inspired confidence‑‑‑Trial Court had already taken a lenient view, and had not awarded the maximum sentence to accused‑‑‑Conviction and sentence of accused were maintained in circumstances.
Rehmuddin v. The State 1973 SCMR 472; Mehmood Ahmed and 3 others v. The State 1995 SCMR 127; Mardan Ali v. Gulistan and others 1980 SCMR 889; Safiullah v. The State 1985 SCMR 410; Juma Khan v. The State 1.978 PCr. LJ 534; Mehra v. The State 1995 PCr. LJ 1122 and Abdul Rauf v. Siddik and another 1988 PCr. LJ 981 ref.
Habibullah Shaikh for Appellants.
Sher Muhammad Shar, A.A.‑G. for the State.
Date of hearing: 7th December, 2000.
JUDGMENT
Through this appeal the judgment assailed is dated 21‑7‑1998 passed by learned 1st Additional Sessions Judge, Khairpur in Sessions Case No. 19 of 1985 re: State v. Mithal and another for an offence under sections 302 and 34, P.P.C. whereby the appellants have been awarded sentence of imprisonment for life and fine of Rs.25,000 each and in case of default they have to undergo two years more. The amount of fine, if recovered, half of the same is to be paid to the legal heirs of the deceased as compensation.
Facts in brief are that complainant Syed Hakim Ali Shah lodged first information report on 9‑4‑1985 at 10‑00 a.m. with Police Station Kotdiji wherein he stated that on the fateful day, he, his son Syed Panah Ali Shah and Ghulam Mustafa were sitting in their house, when at about 10‑00 a.m. body gave call to his son outside the house. Panah Ali Shah went outside the house and raised cries, saying that the people were fighting with him. Upon hearing cries, the complainant and his nephew Syed Ghulam Mustafa Shah came out and saw that accused Bashu alias Bashir caused hatchet blow on the head of Panah Ali Shah, accused Mitho caused hatchet blow on the right thigh whereas accused Soomar tried to hit Lathi blow but in the meantime the complainant and others intervened and the culprits decamped towards east.
Police took up investigation and on completion of the same submitted challan in the Court against the appellants and accused Soomar to stand trial.
The charge was framed against the accused, to which they pleaded not guilty and claimed to be tried. During the pendency of trial accused Soomar died and the proceedings were ordered to abate against him.
The prosecution examined Mashir Allah Rakhio as Exh.8, complainant Syed Hakim Ali Shah Exh.10, Ghulam Mustafa Shah Exh.11, Majeed Exh.12, Bahadur Exh.15, Dr. Abdul Ghafoor Exh.17 and A.S.I.P. Ghulam Hussain Exh.18. Thereafter, the side of the prosecution was closed.
The statements of accused were recorded under section 342, Cr.P.C. wherein both the appellants denied the allegations levelled against them. The appellants neither examined themselves on oath nor produced any defence witness.
The trial Court ultimately came to the conclusion that prosecution has been able to bring home the guilt of the accused and sentenced them for the term stated above.
It is contended by Mr. Habibullah Shaikh, learned counsel for appellants that the learned trial Court has misread and misappraised the evidence on record. The learned trial Court has fallen in error by awarding the sentence to appellants on relying upon the evidence which was highly interested and partisan. The recovery of hatchet from the house of appellant Bashu alias Bashir in his absence was of no consequence. The motive as disclosed in the F. I. R. to the effect that the girl Msr. Hoori was missing two days prior to this incident and that the present applicants suspected the deceased to be involved in the abduction but it has not been proved by the prosecution by adducing any evidence. It is submitted that even the trial Court has discarded and disbelieved the evidence of recovery of alleged hatchet and so also the motive as disclosed in the F.I.R. The trial Court has placed its reliance on the ocular evidence of P.W. Hakim Ali Shah, P.W. Ghulam Hussain and P.W. Majeed. It is pleaded that the said witnesses are interested and their evidence requires independent corroboration. Moreover, the evidence of these witnesses suffers from material discrepancies. The reliance is placed upon the case reported as Rehmuddin v. The State 1973 SCMR 472, Mehmood Ahmed and 3 others v. The State 1995 SCMR 127, Mardan Ali v. Gulistan and others 1980 SCMR 889, Safiullah v. The State 1985 SCMR 410, Juma Khan v. The State 1978 PCr.LJ 534, Mehra v. The State 1995 PCr. LJ 1122 and Abdul Rauf v. Siddik and another 1988 PCr. LJ 981.
Mr. Sher Muhammad Shar learned A.A.‑G. has supported the impugned judgment and argued that all the witnesses are natural. Their evidence has not been shattered or shaken by the defence. It is argued that their testimonies get support from medical evidence. The eye‑witnesses of the case are complainant Syed Hakim Ali Shah, Syed Ghulam Mustafa Shah and Majeed. The complainant has stated that he, his son Syed Panah Ali Shah and Ghulam, Mustafa were sitting in their house when at about 10‑00 a.m. some body gave a call to Panah Ali Shah upon which he went outside the house and was attacked by appellants Bashu alias Bashir, Mitho and Soomar. Pariah Ali Shah raised cries which attracted complainant, Ghulam Mustafa Shah and Majeed. They witnessed the incident and attributed specific hatchet injuries to both the appellants. This fact has been corroborated by medical evidence. The said version of complainant Hakim Ali Shah is supported by P.W. Ghulam Mustafa Shah as well as P.W. Majeed. P.W. Majeed is not related to the complainant. They are the natural witnesses and. their testimony cannot be discarded merely for the reason that they were interested. The evidence of these witnesses inspires confidence and is supported by medical evidence. This incident has occurred in broad daylight and the F.I.R. is promptly lodged within one hour. The, F.I.R. was initially recorded under section 324, P.P.C. but the deceased was serious and he was admitted in Civil Hospital, Karachi where he died on 5-5-1985.
So far the motive is concerned, it is not deposed by the witnesses as it involves the honour of the people and it could aggravate the enmities between the people of two communities and could create tense situation in the village. The recovery of hatchet was of no consequence as the alleged hatchet was recovered from the house of accused in his absence. The trial Court rightly discarded the said two pieces of evidence.
The case‑law cited at the bar by the learned counsel for the applicant is distinguishable from the facts and circumstances of the instant case.
The trial Court has already taken lenient view and has not awarded the maximum sentence to appellants. The judgment does not suffer from any infirmity or irregularity. Hence this appeal fails and sentence awarded to the appellants is maintained.
N.H.Q./M‑142/K Appeal dismissed.