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Petitioner: Muhammad Ashraf VS Respondent: The State
Court Name: Sindh High Court Judge(s): Muhammad Karim Khan Agha, Zulfiqar Ali Sangi Title: Muhammad Ashraf vs The State Case No.: Criminal Appeal No. D-68 and Confirmation Case No. D-08 of 2015 Date of Judgment:2021-07-01 Reported As: 2023 YLR 750 Result: Appeal dismissed
JUDGMENT
JUDGMENT ZULFIQAR ALI SANGI, J. This criminal appeal is directed against the judgment dated 27.07.2015, passed by learned Sessions Judge, Matiari, in Session Case No. 08 of 2013 (Re: The State v. Muhammad Ashraf), emanating from Crime No. 207 of 2012, registered at Police Station Hala, under section 302, P.P.C., whereby the appellant was convicted under section 302(b), P.P.C. and sentenced to death subject to confirmation by this court. He was also directed to pay compensation of Rs.200,000/- to the legal heirs of the deceased as provided under section 544-A, Cr.P.C. 2. The brief facts of the prosecution case as per FIR, registered by complainant Khair Muhammad at Police Station Hala are that his brother Moula Bux who for a long time worked as Welder with mechanic Ashraf Siyal (accused) at his shop about one month before the incident started his own shop of spare parts where he also used to work as mechanic and complainant as electrician, on which accused was unhappy, who by different ways used to pressurize them. On 27.12.2012 a Mazda pickup was brought to the shop of deceased for repair but its work could not be completed. Complainant and PWs Naseer Muhammad and Aamir Ali laid in Mazda pickup while Moula Bux went to sleep on a Charpai inside the shop by closing its shutter. On 28.12.2012 at about 7-00 a.m. the complainant and both the PWs Naseer Muhammad and Aamir Ali woke up on the sound of opening shutter and heard cries. They got off from the pickup and rushed to the shop where they saw accused Ashraf causing hatchet blows to Moula Bux. Complainant party challenged the accused (raised Hakals) on which accused by raising hatchet fled away. They found the deceased having sustained hatchet injuries on his face who died before them. The complainant through telephone informed his relatives and police. ASI Ubedullah reached at the place of incident,
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prepared inquest report, memo of inspection of dead body and sent it for autopsy. After post- mortem examination, he recovered/collected the blood stained clothes of deceased under a mashirnama and handed over the dead body of deceased to his heirs. After sending dead body of deceased to his village, the complainant went to PS and lodged the FIR. 3. After registration of FIR, SIP Gulsher carried out investigation of the case. He accompanied the complainant to the scene of offence, inspected the place of incident, collected the blood stained earth and on the same day arrested the accused. At the time of interrogation the accused was wearing clothes which were blood stained and consequently, I.O. seized the same in presence of mashirs. On the same day, accused led the police and mashirs to his house and produced blood, stained hatchet which I.O. secured and sealed on the spot. He recorded 161, Cr.P.C. statements of the witnesses and on the next day got their 164 Cr.P.C. statements recorded before the concerned Magistrate, sent the case property to chemical examiner and after completing the investigation, submitted the challan of the case in the court of law. After completing necessary formalities the trial court framed the charge against the appellant to which he pleaded not guilty and claimed trial. 4. At the trial, the prosecution in order to prove its case examined P.W-1 Complainant Khair Muhammad at Ex. 10, who produced FIR at Ex. 10/A. P.W-2 Naseer Muhammad at Ex.11, who produced his 164, Cr.P.C. statement at Ex.11/A. P.W-3 Aamir Ali at Ex.12, who produced his 164, Cr.P.C. statement at Ex.12/A. P.W-4 Dr Shafiq Hussain at Ex.13, who produced letter whereby he received dead body of deceased along with Lash Chakas Form, receipt of handing over clothes of deceased stained with blood to ASI Ubedullah, two photographs of deceased and post-mortem report of deceased Moula Bux at Ex.13/A to 13/F respectively. P.W-5 Waheed Faisal Tapedar at Ex.15, who produced sketch of place of incident at Ex.15/A. P. W- 6 Muhammad Rafiq mashir at Ex,16, who produced inquest report of deceased, memo. of inspection of dead body, memo. of recovery of clothes of deceased, mashirnama of injuries of dead body, mashirnama of inspection of place of incident, mashirnama of arrest of accused, mashirnama of recovery of bloodstained clothes of accused and mashirnama of recovery of bloodstained hatchet at Exs.16/A to 16/H respectively. P.W-7 ASI Ubedullah at Ex.17 and P.W-8 SIP Gulsher Otho I.O of the case, who produced two photos of deceased Moula Bux, report of Chemical Examiner and Roznamcha Entry Nos. 09, 10, 11, 12, 13 and 14 dated 28.12.2012 at Exs.18/A to 18/F respectively. Thereafter prosecution closed its side vide statement at Ex.19. The statement of accused was recorded under section 342, Cr.P.C whereby he claimed his false implication. He, however, neither examined himself on oath nor produced any witness in his defence. 5. Learned trial court after hearing the parties and examining the evidence available on record convicted and sentenced the appellant as stated above hence this appeal against the conviction. 6. Mr. Salahuddin Khan Gandapur, learned advocate for appellant has contended that the case registered against the appellant is false and has been registered due to enmity on matrimonial dispute; that there is delay in registration of FIR and the same has not been explained by the complainant; that all the witnesses are related to each other and are interested witnesses; that the complainant party as alleged by them were present at the place of wardat but they not take efforts to save the deceased; that prosecution case is highly doubtful; that the evidence brought on record is contradictory on material particulars of the case and therefore the same cannot be safely relied upon for maintaining conviction. He further contended that learned trial court has passed the impugned judgment which is based upon surmises, conjectures, same is perverse and against the natural norms of justice so also against the principles of criminal justice; that learned trial court while passing impugned judgment has failed to apply judicial and prudent mind; that impugned judgment is against the law, facts and as such cannot be upheld; that it was the case of acquittal but learned trial court has wrongly discussed the points for determination and convicted
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the appellant; that material points and issues involved in the case were not discussed by learned trial court; that all the PWs are interested and false implication of the appellant cannot be ruled out; that learned trial court has misread and non-read the evidence of witnesses and as such has not appreciated the same and passed impugned judgment in hasty manner; that prosecution evidence is not trustworthy. He prayed that the appeal may be allowed and the appellant may be acquitted. In support of his contention he relied upon the cases of Zeeshan alias Shani v. The State (2012 SCMR 428), Noor Muhammad v. The State (2010 SCMR 97), Muhammad Fiaz Khan v. Ajmer Khan and another (2010 SCMR 105), Iftikhar Hussain v. The State (2004 SCMR 1185), Hashim Qasim v. State (2017 SCMR 986), Muhammad Nawaz v. The State (2005 PLD SC 40), Tariq Pervez v. The State (1995 SCMR 1345), Ayub Masih v. The State (2002 PLD SC 1048), Yameen Kumhar v. The State (PLD 1990 Kar. 275), Amjad Shah v. The State (2017 PLD SC 152) and Ghulam Mohy-ud- Din v. The State (2014 SCMR 1034). 7. Ms. Safa Hisbani, learned A.P.G. Sindh after going through the entire evidence of prosecution witnesses as well as other record, of the case has supported the impugned judgment. She argued that the prosecution produced three eye-witnesses who were natural witnesses and fully supported the case; that ocular evidence is supported by the medical evidence; that appellant was arrested on the same day and at the time of arrest his cloths were stained with blood; that crime weapon (hatchet) was recovered from the appellant on his pointation; that cloths of appellant and the hatchet were sent for chemical examination and report is in positive; that delay in the FIR was fully explained by the complainant; that mashir Rafique is an independent witness having no enmity with appellant. Lastly, she prayed that the appeal of the appellant may be dismissed and the conviction and sentence handed down by the trial court may be maintained. 8. Learned counsel for the complainant adopted the arguments of APG and further argued that the prosecution has proved the case against the appellant by producing reliable, trustworthy and confidence-inspiring evidence; that all the witnesses supported the case in all respects and deposed against the appellant; that the death penalty was rightly awarded by the trial court. In support of his contention he relied upon the cases of Ahmad Nawaz v. The State (2011 SCMR 593), Iftikhar Mehmood v. Qaiser Iftikhar and others (2011 SCMR 1165), Muhammad Imran alias Asif v. The State (2013 SCMR 782), Sabir Hussain alias Sabri v. The State (2013 SCMR 1554), Zeeshan Afzal alias Shani v. The State and another (2013 SCMR 1602), Muhammad Anwar v. The State (2014 SCMR 338), Naveed alias Needu v. The State and others (2014 SCMR 1464), Muhammad Nadeem Waqas v. The State (2014 SCMR 1658), Muhammad Asif v. Muhammad Akhtar and others (2016 SCMR 2035), Qaddan and others v. The State (2017 SCMR 148) and Muhammad Sadiq v. The State (2017 SCMR 144). 9. We have heard learned counsel for the appellant, learned A.P.G. for the state and learned counsel for the complainant and have perused the material avail-able on record with their able assistance. 10. The evidence produced by the prosecution in the shape of ocular evidence and medical evidence coupled with documentary evidence, includes postmortem of deceased, recovery of blood stained earth from the place of wardat established beyond any shadow of reasonable doubt that on 28-12-2012 at about 07.00 am at shop of the deceased the deceased received injuries of sharp cutting weapon (hatchet) and died due to un-natural death at the spot. Prosecution in order to prove unnatural death of deceased has examined, Dr. Shafique Hussain P.W-4 who deposed that on 28.12.2012 when he was on his duty at Taluka Hospital Hala as Medical Officer on the same day at about 09.30 am he received dead body of deceased Moula Bux son of Haji Hussain Bux Leghari, aged about 28 years belonging to village Saeed Khan Leghari, brought from Police Station Hala by ASI Ubedullah Rind through letter No. A-28.12.2012 along with Lash Chakas Form. He deposed that the information furnished by police revealed that the death of deceased was due to
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sharp cutting weapon injuries. The dead body was identified by brothers of deceased namely Khair Muhammad and Irshad Ali Leghari. He started conducting post-mortem examination of the dead body at 10.00 am and finished/completed at 11.30 am on same day. On the external examination he found that the dead body was of a young age with healthy built and normal height with damaged face, structure, eyeball depressed internally, pupils dilated, mouth was also damaged, teeth detached and all structures of face stained with clotted blood. Rigor mortis were developed. On the external examination, he found following injuries on the body of deceased: (1) Incised wound on front of head cutting skull bone, brain matter also seem measuring 15 cm x 2 cm x 7 cm deep (stained with blood). (2) Incised wound oblique from right parietal region to left side of face with damaged structures of face depressed left eyeball inside 21 cm x 6 cm x 4 cm stained with clotted blood. (3) Incised wound from medial side of right eyebrow up to upper level of right ear 14 cm x 4 cm x 3 cm stained with clotted blood. (4) Incised wound cutting nose to right side of face 15 cm x 4 cm x 2 cm (Blood stained). (5) Incised wound from lateral side of mouth to right cheeck 8 cm x 1 cm stained with clotted blood. (6) Incised wound below lateral side of chin to medial side of chin right side with damaged teeth 11 cm x 2 cm deep internally stained with blood. (7) Incised wound at middle of chin 9 cm. (8) Incised wound on front of neck cutting major vessels (carotid) stained with blood. All the above injuries were antemortem and caused with sharp cutting weapons. On internal examination, he found following damages. Head.As mentioned in surface injuries that injury No.1 of the head cuts the skull bone and brain matter is seen (damage of the vital organ (brain) found Neck.Injury No 8 of surface injury cuts the major vessels (carotid also) due to that there was a heavy bleeding. Thorax. No any injuries seen on thorax region so no need to open the thoracic cavity. Abdomen.No any abdominal injury seen so no need to open abdominal cavity. Remarks.Although all injuries were grievous in nature and damaged the internal structures but due to injury No.1 of surface injury damaged the vital organ (brain) and injury No.8 of surface injury damaged the major vessels (carotid vessels also so there was a heavy loss of blood. Keeping in view the findings on external as well as internal examination of deceased Moula Bux son of Haji Hussain Bux he was of the opinion that the death occurred due to damage of vital organ (brain) and the circulatory failure due to the heavy loss of blood. The probable time elapsed between injuries and death was instantaneously and between death and post-mortem was about 9 to 10 hours. After conducting post-mortem examination the dead body and clothes which were in black colour shalwar was and Qameez (Shirt), white Banyan (Ganji) and orange colour agat (Nara) stained with blood were handed over to ASI Ubedullah Rind of Police Station Hala. He issued such postmortem report. 11. After proving the un-natural death of the deceased the prosecution brought on record ocular and other supportive evidence to prove who caused the death of the deceased. To prove the same, the prosecution examined Khair Muhammad P.W-1 (complainant) who deposed that the deceased Moula Bux was his brother and used to work for a long period as Kamani maker and welder at the shop of accused Mistri Ashraf Siyal. About one and half month prior to this incident deceased Moula Bux had opened his own shop of spare parts adjacent to the shop of Mistri Ashraf. The deceased also used to work as welder and Kamani maker at his own shop and he was also
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working as auto electrician with deceased on which Mistri Ashraf was unhappy. Mistri Ashraf with different ways used to pressurize the deceased to close the shop. On 27.12.2018 a Mazda came at the shop/garage for work of welding and kamani and they worked on Mazda up to 4:00 A.M. of night but could not complete. P.W. Naseer Muhammad son of Allah Rakhio and Aamir Ali son of Ali Nawaz, were also working as helpers and they both were present working on the Mazda till 4:00 A.M and then his brother Moula Bux slept in shop on a cot therein. P.W Naseer Muhammad, Aamir Ali and he (complainant) slept in Mazda. On 28.12.2012 at about 07:00 a.m. (morning) they heard voice of opening shutter of the shop and. heard cries from there. He deposed that they all three woke up and immediately rushed towards the shop. They saw accused Ashraf having hatchet was causing blows with sharp side on face of his brother Moula Bux. They raised hackles on which accused left his brother and moved his hatchet towards them. Due to fear they stopped at the door of shop. The accused along with hatchet went away from the shop and his brother died within their presence. Thereafter, they informed their relatives and the police who arrived at place of incident. Police after completion of formalities referred the dead body to Taluka Hospital Hala for post-mortem examination. After conducting post-mortem the dead body was handed over to them and they sent it to the village and he went to PS Hala and registered the FIR. He further deposed that on his pointation police inspected the place of incident in presence of mashirs Muhammad Rafique and Umed Ali on same day. 12. In support of evidence of complainant (eye-witness) another eye-witness Naseer Muhammad P.W-2 was examined by the prosecution who deposed that deceased Moula Bux was working as welder and kamani maker. He, complainant Khair Muhammad and P.WAamir were also working with deceased Moula Bux in his garage. About one and half months prior to this incident deceased had opened his shop of spare parts with the name of the Nigahe Ali. The deceased was also working as welder and kamani maker in his shop. Prior to opening of his shop deceased Moula Bux used to work with Mistri Ashraf (present accused). Accused Ashraf was unhappy with deceased, Moula Bux on opening his separate shop of spare parts. Accused Ashraf with different ways used to pressurize Moula Bux for getting share in his shop. On 27.12.2012 a Mazda came at the shop of deceased Moula Bux on which they all, deceased Moula Bux, complainant Khair Muhammad, P.W- Aamir and he started work. They worked on Mazda up to 4:00 a.m. at night and then deceased Moula Bux slept in his shop on cot after closing the shutter. Complainant Khair Muhammad, P.W- Aamir Ali and he slept in Mazda. On next day viz. 28.12.2012 at 07:00 am they heard the voice of opening shutter of shop of deceased and also heard cries from there. They all three immediately went to the shop at its gate and saw Mistri Ashraf having hatchet causing hatchet blow with sharp side on the face of deceased Moula Bux. They raised hakals on which he pointed his hatchet towards them and compelled them to go back. They stood at the gate and then accused went away along with his hatchet. They tried to carry deceased and found that he had sustained hatchet blows on his face but he died in their presence. They informed about the incident to their relatives through telephone who came there. Thereafter they informed the police and police also arrived there. Police referred the dead body to Taluka Hospital Hala. After post-mortem examination the dead body was handed over to them. Then Khair Muhammad went to register the FIR. On 30.12.2012 his statement under section 161 Cr.P.C. was recorded by police. On 04.01.2013 he was called for recording his statement under section 164, Cr.P.C. before Magistrate but it could not be recorded for some reason. On 09.01.2013 his 164, Cr.P.C. statement was recorded before the Civil Judge and JM Hala-I in presence of accused Ashraf. Statement of P. W- Aamir Ali under section 164, Cr.P.C. was also recorded on the same day before the Magistrate. He was cross-examined by the defence counsel but we could not find any substance favourable to the appellant. 13. The prosecution also produced another eye-witness Amir Ali P.W-3 who deposed that deceased Moula Bux was his relative. Deceased used to work as welder and kamani maker. Deceased Moula
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Bux used to work as welder and kamani maker for a long period with accused Ashraf. Deceased Moula Bux was aged about 28 years. About one and half months prior to this incident deceased left the shop of accused Ashraf and opened his own shop of spare parts on which complainant Khair Muhammad used to work as " auto electrician and P.W Naseer and he used to work as welder and kamani maker with deceased. Accused Ashraf was unhappy with deceased Moula Bux on opening his own shop of spare parts. Accused Ashraf with different ways used to pressurize deceased Moula Bux. On 27.12.2012 a Mazda came at the shop for working of kamani. They worked on Mazda till 4:00 am at night. Then deceased Moula Bux slept in shop after downing its shutter while complainant, P.W Naseer Muhammad and he slept in Mazda. On next day 28.12.2012 at 7:00 am they heard voice of opening shutter on which woke up and heard cries from the shop. They immediately went towards shop and at the gate they saw accused Ashraf having hatchet causing blows with sharp side to deceased Moula Bux on his face. They raised hakals on which accused pointed his hatchet towards them and due to fear they could not intervene and then accused went away from wardat along with hatchet. They went over to the deceased and found that he had sustained hatchet blows on his face and died in their presence. They informed about incident to their relatives through telephone. The relatives Irshad Ali and others arrived at the place of incident and then they informed the police. Police also reached at the spot and after completing legal formalities referred the dead body to Taluka Hospital Hala. After post-mortem examination of deceased the dead body was handed over to them they took away the dead body to the village and complainant Khair Muhammad went to register the FIR. On 30.12.2012 his statement under section 161, Cr.P.C. was recorded by the police. On 09.01.2013 his section 164, Cr.P.C. statement was also recorded before the Magistrate in presence of the accused. He was cross-examined by the defence counsel but his evidence was not shattered. 14. All the above three eye-witnesses fully supported the prosecution case. They were cross- examined and even during cross-examination they all were on same line and no major contradiction was pointed out by defence counsel. They all being workers at the said shop are natural witnesses. Their presence at the place of incident at the relevant time is established. The incident was of day time and they all knew the appellant prior to the incident, therefore, there is no chance of mistaken identity. As regards to the contentions of learned advocate for the appellant that the witnesses are near relatives to the deceased and are interested therefore their evidence cannot be relied upon has no force as in the instant case. This is because the eye-witnesses have sufficiently explained the date, time and place of occurrence as well as each and every event of the occurrence. We would not hesitate that where the witnesses fall within the category of natural witnesses and detailed the manner of the incident in a confidence-inspiring manner then only escape available to the accused/appellant is that to satisfactorily establish that witnesses are not the witnesses of truth but "interested" one. An interested witness is not the one who is relative or friend but is the one who has a motive to falsely implicate an accused. No substance has been brought on 'record by the appellant to justify his false implication in this case at the hands of the complainant party on account of the previous enmity. Reliance may be placed on the case of Lal Khan v. State (2006 SCMR 1846) wherein Honourable Supreme Court has held as under:- ... The mere fact that a witness is closely related to the accused or deceased or he is not related to either party, is not a sole criteria to judge his independence or to accept or reject his testimony rather the true test is whether the evidence of a witness is probable and consistent with the circumstances of the case or not. In another case of Farooq Khan v. The State (2008 SCMR 917), Honourable Supreme Court has held as under:- 11. PW.8 complainant is real brother of the deceased who is a natural witness but not an interested witness. An interested witness is one, who has motive, falsely implicates an accused or has
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previous enmity with the person involved. There is a rule that the statement of an interested witness can be taken into consideration for corroboration and mere relationship with the deceased is not "sufficient" to discredit the witness particularly when there is no motive to falsely involve the accused. The principles for accepting the testimony of interested witness are set out in Nazir v. The State PLD 1962 SC 269 and Sheruddin v. Allhaj Rakhio 1989 SCMR 1461. In another case of Zulfiqar Ahmed and another v. State (2011 SCMR 492), Honourable Supreme Court has held as under:- ...It is well settled by now that merely on the ground of inter se relationship the statement of a witness cannot be brushed aside. The concept of 'interested witness' was discussed elaborately in case titled Iqbal alias Bala v. The State (1994 SCMR 1) and it was held that `friendship or relationship with the deceased will not be sufficient to discredit a witness particularly when there is no motive to falsely involve the accused. 15. Based on the particular facts and circumstances of the case mere relationship of these eye- witnesses with the deceased alone is not sufficient to discard the testimony of the complainant and the other eye-witnesses. In the matters of capital punishment, the accused would not stand absolved by making a mere allegation of dispute/enmity but would require to bring on record that there had been such a dispute/enmity, which could be believed to have motivated…
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