Full Judgment Text & Judicial Ruling

2023 P Cr. L J Note 5 [Sindh (Sukkur Bench)] Before Amjad Ali Sahito, J GHULAM SARWER---Appellant Versus The STATE---Respondent Criminal Appeals Nos. 25 and 26 of 2020, decided on 14th March, 2022. (a) Penal Code (XLV of 1860)--- ----Ss. 302, 148, 149 & 114---Qatl-i-amd, rioting with deadly weapons, unlawful assembly, abettor present when offence was committed---Appreciation of evidence---Recovery of weapon of offence---Scope---Accused persons were charged that they in furtherance of common intention committed murder of the brother of the complainant---During interrogation, the accused admitted the guilt by saying that he had murdered the deceased causing him firearm injuries of TT pistol---Accused led the police party and took out the pistol from the root of date palm, same was lying in the black shopper---Pistol was unloaded and found three live bullets lying in its magazine---On enquiry about pistol and bullets, the accused disclosed the same to be unlicensed---Investigating Officer sealed the pistol and bullets separately and prepared such memo in presence of mashirs and obtained their signatures---Blood-stained clothes, pistols along with bullets available in Court were the same---Circumstances established that prosecution had proved its case against the accused beyond any shadow of doubt---Appeal was dismissed accordingly. (b) Penal Code (XLV of 1860)--- ----Ss. 302, 148, 149 & 114---Qatl-i-amd, rioting with deadly weapons, unlawful assembly, abettor present when offence was committed---Appreciation of evidence---Ocular account corroborated by medical evidence---Scope---Accused were charged that they in furtherance of common intention committed murder of the brother of the complainant---Eye-witnesses had sufficiently explained the date, time and place of occurrence, as well as each and every event of occurrence in a clear cut manner---Parties were known to each other as was evident from their evidence and that was a daytime incident, there was no chance of mistaken identity of the accused---Witnesses who were present at the place of the incident were busy in gossip at the hotel after taking tea, hence they were natural witnesses---Where the witnesses fell within the category of natural witnesses and gave a detail of the incident in a confidence inspiring manner their evidence would not be brushed aside---Deceased was the brother of the complainant and then normally the possibility of substitution became rare---No material had been brought on record by the accused to show that deep-rooted enmity existed earlier between the parties, which could have been the reason for the false involvement of the accused in the case---Although, the witnesses were cross-examined by the defence at length, wherein defence asked multiple questions to shatter their confidence so also their presence at the scene of occurrence, but could not extract anything in favour of the accused---Witnesses remained consistent on all material points---Prosecution evidence had also found corroboration from the medical evidence concerning the injuries and time of the incident, which was evident from the evidence of the Medical Officer who had conducted post-mortem examination upon the dead body of the deceased---Said witness deposed that injuries were ante-mortem and caused by due to discharge from firearm weapons---Injuries individually and collectively were sufficient to cause death in the ordinary course of nature---Circumstances established that prosecution had proved its case against the accused beyond any shadow of doubt---Appeal was dismissed accordingly. Abdul Jabbar and another v. The State 2019 SCMR 129; Saeed Ahmed v. Muhammad Nawaz and others 2012 SCMR 89; Mehmood Ahmed and 3 others v. The State and another 1995 SCMR 127; Muhammad Asif v. The State 2017 SCMR 486; Mehboob Ellahi and another v. The State 2019 YLR 2144; Jalat Khan v. The State 2020 PCr.LJ 503; Afaq Ahmed v. The State 2020 YLR 676; Muhammad Shah Nawaz v. The State and others 2019 MLD 455; 2020 SCMR 305; Muhammad Ilyas and another 2018 YLR 469; Hassan Ali Siddiqui v. The State 2021 PCr.LJ 19; Pathan v. The State 2015 SCMR 315; Faiz Muhammad v. The State and another 2020 YLR 2503; Khalil Ahmed and others v. The State 2004 YLR 413; Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596; Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327; Abdul Ghafoor v. The State 2017 YLR 2410; G.M. Niaz v. The State 2018 SCMR 506; Muhammad Rashid and another v. The State 2022 YLR 119; 2021 PCr.LJ 1237; Ghulam Murtaza v. The State 2021 SCMR 149; Muhammad Afzal v. The State 2021 SCMR 289; PLD 2002 SC 786; 2014 PCr.LJ 885; Muhammad Tufail v. The State PLD 2002 SC 222 and Muhammad Younas v. The State and others 1990 SCMR 1272 ref. Lal Khan v. The State 2006 SCMR 1846; Farooq Khan v. The State 2008 SCMR 917; Zulfiqar Ahmed and others v. The State 2011 SCMR 492 and Zahoor Ahmed v. The State 2007 SCMR 1519 rel. (c) Penal Code (XLV of 1860)--- ----Ss. 302, 148, 149 & 114---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, rioting with deadly weapons, unlawful assembly, abettor present when offence was committed---Appreciation of evidence---Defence plea---Scope---Accused were charged that they in furtherance of common intention committed murder of the brother of the complainant---Accused in his statement under S. 342, Cr.P.C, had simply denied the prosecution allegation by stating that he was innocent and had falsely been implicated in the case by the complainant due to murder of Pathan as they had levelled allegation of murder of Pathan upon the deceased---Accused had produced certified copies of FIR and direct complaint---Complainant and other prosecution witnesses in their evidence had categorically stated that accused due to the enmity over the murder of Pathan accompanied with other accused, who were absconders, attacked and fired upon brother of the complainant from their respective weapons and committed his murder, which had been corroborated by the medical evidence---Said aspect of the matter had not been contradicted by the defence during lengthy cross-examination meaning thereby that it had been admitted---Circumstances established that prosecution had proved its case against the accused beyond any shadow of doubt---Appeal was dismissed accordingly. (d) Criminal trial--- ----Statement---Minor discrepancies---Scope---Minor discrepancies, if any, in statements of all the witnesses are not enough to demolish the case of the prosecution, because these discrepancies always occurred on account of lapse of time which could be ignored---Statements of the witnesses have to be read as a whole and the court should not pick up a sentence in isolation from the entire statement and ignored its proper reference, which may use against or in favour of a party---Contradictions must be material and substantial to adversely affect the case of the prosecution. Ali Gul Abbasi for Appellant. Shafi Muhammad Mahar, Deputy Prosecutor General, Sindh for the State. Date of hearing: 24th February, 2022. JUDGMENT AMJAD ALI SAHITO, J.---By this common judgment, I intend to dispose of the captioned Criminal Appeals filed by the appellant Ghulam Sarwar thereby impugned the judgments dated 28-02-2020 passed by learned 1st Additional Sessions Judge/(MCTC), Sukkur, arising out of Crime No. 31/2018 offence under sections 302, 148, 149 read with section 114, P.P.C. and Crime No. 40/2018, offence under section 24, Sindh Arms Act, 2013, registered at Police Station Airport Sukkur "Re. The State v. Ghulam Sarwar Malik". In main murder case "Sessions Case No. 400/2018", the appellant has been convicted and sentenced to suffer life imprisonment as Ta'azir and to pay fine of Rs. 2,00,000/- (Two lacs) as compensation to the legal heirs of the deceased. While in an off shoot case "Sessions Case No.305/2018" the appellant has been convicted and sentenced to suffer two years Imprisonment with fine of Rs. 5000/-(Five Thousand), in case of default, he shall further suffer 15 days more. The benefit of section 382-B, Cr.P.C also extended to the appellant/accused. 2. Brief facts of the prosecution case are that complainant Ali Sher lodged the FIR on 16-06-2018 alleging therein that in the year 2016, the dead body of one Pathan Malik (brother of Abdul Haq) and others was found in dirty pond situated at Asif Colony, such FIR was lodged by Abdul Jabbar Malik against Ali Nawaz (brother of complainant and others) and said case was disposed of by the Court of law, whereupon Abdul Haq remained annoyed with the complainant. In consequence of such murder case, on 16-06-2018 complainant along with his brother Ali Nawaz aged about 36 years, cousins Muhammad Bux and Arbab went towards Chohan hotel situated at Asif Colony, to take a cup of tea. They were busy with gossips. It was about 1200 hours at noon, when two motorcycles came and parked outside of the shop. Accused Bhagio, Mehrab, Haji, Abdul Najaf, Sarwar, Abdul Razzaq alighted from the motorcycles and took out pistols from folds of their Shalwars. Accused Abdul Najaf Malik instigated the rest accused to kill Ali Nawaz (brother of complainant), to which accused Bhagio opened direct fires upon Ali Nawaz, which hit him on his right thigh. Accused Mehrab opened fire which hit him left side of flank. Accused Haji fired at Ali Nawaz, which hit his forearm. Accused Sarwar fired upon Ali Nawaz, which hit him under right side of chest. Accused Abdul Najaf and Abdul Razzaq fired upon Ali Nawaz, which hit him on his chest. On receiving fire shot injuries, Ali Nawaz fell down on the ground while raising cries. Then all the accused persons went away on their motorcycles towards North. Thereafter the complainant party arranged the conveyance and shifted the Ali Nawaz to Hospital and also informed the incident to police, but Ali Nawaz died in the way. On reaching the complainant party at Hospital, the police party also arrived there. The post mortem of Ali Nawaz was conducted and then dead boy was handed over to complainant party. On completion of funeral and burial formalities, the complainant appeared at police station and lodged the above said FIR. 3. After completion of investigation, the police submitted challan before the Court of law by showing all the accused as absconders, except accused Abdul Razzaq, whose name was placed in column No.2. Later on accused Ghulam Sarwar was arrested and on his pointation one unlicensed TT pistol along with magazine containing three live bullets were secured, such FIR No.40/2018 for the offence under section 24, Sindh Arms Act, 2013 was also registered against him. Thereafter learned trial Court issued the NBWs against the absconding accused. The R&Ps of the case were sent to the Court of learned 1st Additional Sessions Judge/(MCTC) Sukkur by way of transfer for its disposal according to law. After completion of legal formalities, accused Bhagio, Mehrab, Haji and Abdul Haq were declared as proclaimed offenders. After supplying the necessary case papers to accused Ghulam Sarwar, formal charge was framed against him, to which he pleaded not guilty and claimed to be tried. 4. To prove the charge against the accused, the prosecution has examined all the material witnesses including complainant, eye-witness, investigation officers, mashirs as well as Medical Officer, who have also exhibited their respective documents. Ultimately learned DDPP for the State closed the prosecution side. 5. The Statement of accused was recorded under section 342, Cr.P.C., but he simply denied the allegations of prosecution and claimed to be innocent, however, he did not opt to examine himself on oath or to produce any witness in his defense. 6. The learned Trial Court, after hearing learned counsel for the parties and assessment of the evidence, convicted and sentenced the appellant/accused by extending him benefit of section 382-B, Cr.P.C vide judgments dated 28-02-2020, which are impugned by him before this Court by way of filing captioned Criminal Appeals. 7. Learned counsel for the appellant/accused contended that the impugned judgments are against the law and facts of the case; that the appellant/accused is innocent and has falsely been implicated in this case by the complainant; that it is day time incident and allegedly occurred in thickly populated area, but no any independent person has been cited as witness in this case and all the PWs are close relatives of the complainant as well as deceased; that there is inordinate delay of about 10 hours in lodging the FIR and such delay has not been explained by the complainant; that there is inordinate delay of thirteen days in recording 161, Cr.P.C statements of PWs; that appellant was allegedly arrested on 03-07-2018 and led the police party on 08-07-2018 and produced TT pistol, which was nothing but same was forsted upon him that there are material contradictions in between the evidence of prosecution witnesses; that the evidence of prosecution witnesses is full of contradictions and discrepancies, which are fatal to the prosecution case. He lastly contended that the prosecution has miserably failed to prove its case against the appellant/accused, thus, he is entitled for acquittal. He placed his reliance on cases reported as 2019 SCMR 129 [Abdul Jabbar and another v. The State], 2012 SCMR 89 [Saeed Ahmed v. Muhammad Nawaz and others], 1995 SCMR 127 [Mehmood Ahmed and 3 others v. The State and another], 2017 SCMR 486(d) [Muhammad Asif v. The State], 2019 YLR 2144(b) [Mehboob Ellahi and another v. The State], 2020 PCr.LJ 503 [Jalat Khan v. The State], 2020 YLR 676 [Afaq Ahmed v. The State], 2019 MLD 455 [Muhammad Shah Nawaz v. The State and others], 2020 SCMR 305, 2018 YLR 469 [Muhammad Ilyas and another], 2021 PCr.LJ 19 [Hassan Ali Siddiqui v. The State], 2015 SCMR 315 [Pathan v. The State], 2020 YLR 2503 [Faiz Muhammad v. The State and another], 2004 YLR 413 [Khalil Ahmed and others v. The State], 2017 SCMR 596 [Mst. Rukhsana Begum and others v. Sajjad and others], 2012 SCMR 327 [Khalid alias Khalidi and 2 others v. The State], 2017 YLR 2410 [Abdul Ghafoor v. The State) and 2018 SCMR 506 [G.M Niaz v. The State]. 8. On the other hand, learned DPG for the State has supported the impugned judgments and opposed for acquittal of appellant/accused on the ground that he is involved in the FIR with specific role of causing fire shot injuries to deceased Ali Nawaz at his chest, which it vital part of body; that no mala fide on the part of the complainant is found to involve him in this case falsely; that on 16-06-2018 during investigation, IO ASI Durood Ali arrested the appellant and during interrogation the appellant confessed his guilt and led the police party towards date palm garden situated behind the Asif Colony and produced one unlicensed pistol along with magazine and three live bullets, which he used in the commission of crime and such FSL report is received in positive; that the judgments passed by learned trial Court are well reasoned and have rightly appreciated the evidence while recording conviction and sentence of the appellant/accused, thus he prayed for dismissal of the instant Crl. Appeal. He placed his reliance on cases reported in 2022 YLR 119 [Muhammad Rashid and another v. The State], 2021 PCr.LJ 1237, 2021 SCMR 149 [Ghulam Murtaza v. The State], 2021 SCMR 289 [Muhammad Afzal v. The State], PLD 2002 SC 786, 2014 PCr.LJ 885, PLD 2002 SC 222 [Muhammad Tufail v. The State] and 1990 SCMR 1272 [Muhammad Younas v. The State and others]. 9. I have heard learned counsel for the appellant/accused, learned DPG for the State and have perused the material available on record. 10. It is borne out from the record that on 16-06-2018 at 1200 hours beside Chohan Hotel inside shop situated at Asif Colony Bachal Shah Miani, accused Ghulam Sarwar Malik along with absconding accused Bhagio, Mehrab, Haji and Abdul Haq (declared proclaimed offenders) duly armed with pistols formed an unlawful assembly and in the prosecution of their common object, at the abetment of absconding accused Abdul Haq fired pistol shots at Ali Nawaz the brother of complainant Ali Sher and committed his murder and such FIR No. 31/2018 was registered by the complainant Ali Sher against the accused. During investigation of the said main murder case, appellant/accused Ghulam Sarwar was arrested on 03-07-2018 by ASI Durood Ali in presence of mashirs Safar Ali and Muhammad Bux. During interrogation, the appellant/accused led the police party towards the place where from he produced the crime weapon i.e one unlicensed TT pistol along with a magazine and three live bullets, in presence of mashirs, which he used in the commission of offence/murder of Ali Nawaz, such FIR was also registered against the appellant/accused. PW-5 Ali Sher produced FIR at Ex. 10/A, I.O./ASI Abdul Karim Khaskheli secured eight empties of pistol and blood stained earth and drafted such memo at spot in presence of mashirs Safar and Muhammad Bux. 11. In cross-examination, the complainant/PW-5 Ali Sher admits that "Accused did not open fires upon us except upon dieceased Ali Nawaz. Deceased received fire shot when he was trying to stand up, on calling his name by the accused. Deceased did not fall on receiving first fire shot. The deceased has received four shots in standing position, he says, he then fell down, whereas two fire shots were hit to him on his falling on the ground....It is true accused Razzak and Sarwar are my neighbourers, whereas rest accused are residents of Dist. Shikarpur." Whereas PW-6 Muhammad Bux deposed that "accused Bhagyo opened direct fires upon Ali Nawaz which hit him on his right thigh. Second fire was opened by accused Mehrab which hit him under left side of flank, the third fire was made by accused Haji which hit to Ali Nawaz at over the left upper arm/doro, accused Ghulam Sarwar opened direct fire upon him which hit to him under chest towards right side. Accused Abdul Haq and Abdul Razak opened fires upon Ali Nawaz which hit to him on his chest, under the boob and abdomen." 12. The prosecution also examined PW-2 HC Nazeer Hussain Kalhoro who was performing his duty at the Police Station. On the day of the incident complainant, Ali Sher informed him on a Cell phone that his caste fellow have caused firearm injuries to his brother Ali Nawaz and he is going to take his injured brother to Civil Hospital Sukkur. It was 1200 hours (day time). Again he (complainant) called him at 1215 hours and disclosed that his brother Ali Nawaz has expired on the way. Thereafter he kept such entry No.08 in respect of information and produced its carbon copy at Ex. 07/A and recognized that it is same, correct. After keeping such entry, he along with other staff arrived at Civil Hospital Sukkur, where he arrived and inspected the dead body of deceased Ali Nawaz and found six firearm injuries, one on right thigh, same was through and through, second was on arm, third was on abdomen, fourth and sixth were on chest and last one was on left side of nipple. He prepared such mashirnama, inquest report and Danistnama of the dead body in presence of mashirs Safar Ali and Muhammad Bux. Thereafter he handed over the dead body of the deceased to PC Muhammad Aslam for conducting a postmortem from Medical Officer. On the same day, PC handed over bloodstained clothes of deceased at 01:30 p.m. and Nasi/brown color Shalwar Kameez and one Nara of white color and sealed the same, then he prepared such memo in presence of same mashirs. On the same day, he was available as duty officer at PS Airport at 2200 hours, when complainant Ali Sher came and narrated the facts of cognizable offence against the nominated accused persons, then he registered FIR bearing Crime No. 31/2018 under sections 302, 114, 148, 149, P.P.C. of PS Airport. The contents thereof were read over to him and he put his LTI. Thereafter he handed over the case papers to I/O ASI Abdul Karim Khaskheli for investigation. 13. Prosecution has examined PW Investigation Officer ASI Abdul Karim Khaskheli, who has deposed that on 16-06-2018 he was performing his duty as ASI at Police Station Airport. After receiving the police papers, he visited the place of wardhat and secured bloodstained earth of the deceased Ali Nawaz and eight empties of TT pistol and prepared such mashirnama in presence of the mashirs. Thereafter he handed over the case papers to ASI Durood Ali Gopang for further investigation. ASI Durood Ali/investigating officer has deposed that on 20-06-2018 he was performing his duty as ASI at Police Station Airport and on the same day he received case papers of Crime No. 31/2018 under section 302, P.P.C. etc of PS Airport from SHO Mushtaq Ahmed Jatoi for further investigation. On 29-06-2018 he recorded 161, Cr.P.C statements of the PWs namely Muhammad Bux and Arbab Ali. On 03-07-2018 accused Ghulam Sarwar Malik was arrested from Saeedabad link road and prepared such memo in presence of mashirs Safar Ali and Muhammad Bux, which he produced at Ex. 08/A, which bears his signature and signatures of mashirs. He interrogated the accused on08-07-2018 vide entry No. 15 in presence of mashirs PC Riaz Ahmed and PC Abdul Razzaq Jatoi. 14. During interrogation, the accused admitted the guilt by saying that on 16-06-2018 he has murdered of Ali Nawaz Malik by causing him firearm injuries of TT pistol. After interrogation vide entry No. 16, he along with the accused, PC Riaz and PC Abdul Razzaq left the police station in police mobile with DPC Abdul Majeed. He produced carbon copies of such entries Nos.15 and 16 at Ex. 08/B and 08/C, which are the same. When they arrived at the pointed place, the accused led the police party and got stopped the vehicle and alighted from it. It was about 1800 hours. Accused going ahead from the police party and taking out the pistol from the root of date palm, same was lying in the black shopper. He appointed PC Riaz and PC Abdul Razzaq as mashirs, then unloaded the pistol, and found three live bullets lying in its magazine. On enquiry about pistol and bullets, the accused disclosed the same to be unlicensed. Then, he sealed the pistol and bullets separately and prepared such memo in presence of said mashirs and obtained their signature, which he produced at Ex. 08/D. The accused and recovered case property viz pistol brought at Police Station where he/IO registered FIR against the accused on behalf of the State bearing Crime No.40/2018 under section 24, Sindh Arms Act at Police Station Airport. On 09-07-2018 vide entry No. 21 at 0600 hours, he along PC Riaz and PC Abdul Razzaq left the police station and visited the place of wardhat and prepared such mashirnama in presence of mashirs PC Riaz and PC Abdul Razzaq, which he produced at Ex. 08/F. On the same day, he recorded 161, Cr.P.C statements of PC Riaz and PC Abdul Razzaq. On the same day, he also wrote a letter to SSP for getting permission concerning the opinion of the recovered pistol from FSL Larkana. Such FSL report of TT pistol and the opinion of the examination of the case has revealed as under:- 1. One .30 bore crime empty now marked as "C1" was FIRED from the above mentioned .30 bore pistol. No rubbed in question in view of the following major points i.e Striker pin marks, breech face marks, ejector marks and chamber marks etc. are Similar. 2. Seven .30 bore crime empties now marked as "C2 or C8" were NOT FIRED from the above mentioned .30 bore pistol. No rubbed in question in view of the following major points i.e Striker pin marks, breech face marks, ejector marks and chamber marks etc as Dissimilar. 15. The bloodstained clothes; pistols along with bullets available in Court were the same. The prosecution has also examined SIP Ghulam Asghar, He also produced a chemical examiner report in respect of blood-stained earth and the clothes of the deceased at Ex. 09/A, which reveals that Shirt and Shalwar of above said white cloths parcel No. 1 and earth material of above said white cloth parcel No.2 are stained with human blood. 16. In the instant matter, the eye-witnesses have sufficiently explained the date, time and place of occurrence, as well as, each and every event of occurrence in a clear cut manner. The parties are known to each other as is evident from their evidence and this is a daytime incident, there was no chance of mistaken identity of the appellant. The witnesses who were present at the place of the incident were busy in gossip at the hotel of Chohan at Asif colony after taking tea, hence they were natural witnesses. I would not hesitate to saying that where the witnesses fall within the category of natural witnesses and give a detail of the incident in a confidence-inspiring manner their evidence will not be brushed aside. The only scope available to the appellant is to satisfactorily establish that witnesses are not the witnesses of truth but interested, which he has failed to demonstrate. In matters of capital punishment, the…

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