GHULAM HYDER Versus State
KHADIM HUSSAIN TUNIO, J.---- Through captioned criminal jail appeal, the appellant has impugned the judgment dated 30.08.2016, passed by learned Sessions Judge Moro in Sessions Case No. 456 of 2010, whereby he has convicted the appellant in Crime No. 19 of 2010, registered at Police Station Laghari, under sections 302, 377, 114 and 34, P.P.C., and sentenced him to suffer imprisonment for life and to pay fine of Rs.100,000/- payable to the legal heirs and further sentenced to suffer R.I for a period of seven years with fine of Rs.50,000/- under section 377, P.P.C. The benefit of section 382-B, Cr.P.C was extended to him.
2. Precisely, facts of the present case are that on 17.10.2010, the complainant was called out of his house by the appellant and co-accused on which the complainant went out with his son and relatives. The appellant exclaimed that he had some work with the son of complainant namely Khalid and that he be left with him, who all left for village Raheem Chand. After a considerable time had passed, at about 1000 on the same day, the complainant went to the village to search for his son. They reached near Government Hospital where they heard the cries of complainant's son and when they reached the sugarcane crop in the back, they witnessed the appellant and co-accused escaping whereas Khalid was set on fire. The complainant party extinguished the fire off of Khalid, who disclosed that the appellant and co-accused had committed unnatural offence with him and then appellant had set him on fire. Khalid, the complainant's son, was taken to the hospital where he succumbed to his injuries, thereafter complainant lodged the FIR.
3. After usual investigation, challan was submitted against the appellant to which he pleaded not guilty and claimed to be tried.
4. In order to substantiate the charge against the appellant, the prosecution examined in all 8 witnesses namely complainant Hashmat Ali, PW-2 Abdul Razzaque, PW-3 Nazeer Ahmed, PW-4 MLO Muhammad Yaseen Bilal, PW-5 MLO Ghulam Shabir Chahwan, PW-6 Hussain Bux, PW-7 Tapedar Qurban Ali and PW-8 SIP Gul Muhammad Dahri, who produced several documents in evidence. Thereafter, prosecution side was closed vide statement at Exhibit 26.
5. Statement of accused under section 342, Cr.P.C was recorded in which he denied the prosecution allegations in toto and pleaded his innocence. However, he neither examined himself on oath nor adduced any evidence in his defence.
6. After hearing the learned counsel for the parties, learned trial Court convicted the appellant as stated supra..
7. Learned counsel for the appellant has contended that ft there are material contradictions in the evidence of P.Ws; that it is not possible for someone on fire to disclose that an unnatural offence was committed with him and that it was in fact appellant who had set him on fire; that besides the disclosure by the deceased, the PWs had no proof regarding involvement of appellant in the alleged offence; that recovery from the place of incident is highly doubtful; that PWs have attempted to make improvements in their version; that all the P.Ws are close relatives of the deceased and complainant, hence interested; that identification of an accused is not possible from his back side; that no independent persons have been cited as witness; that all the eye-witnesses are chance witnesses; that the complainant had nominated 6 accused, however the police let off 3 accused for which the complainant raised no objections even though he had never nominated a primary accused; that the case of the prosecution is full of material contradictions, discrepancy, infirmities, therefore he has prayed that the impugned judgment be set aside and appellant be acquitted of the charge. He has referred the case law reported as Elahi Baksh and others v. The State and others (2005 SCMR 810), Akhtar Ali and others v. The State (2008 SCMR 6), Muhammad Jamil v. Muhammad Akram and others (2009 SCMR 120), Muhammad Ali alias Faisal v. The State (2014 PCr.LJ 669), Zafar Iqbal alias Kodu v. The State and another (2017 YLR 648), Shahid alias Punjabi v. The State (PLD 2017 Sindh 717) and Muhammad Wali Shah and another v. The State and another (2017 PCr.LJ 779).
8. Conversely, learned counsel for complainant has supported the impugned judgment while arguing that the same does not suffer from any infirmities or illegalities; that the appellant committed unnatural offence with the deceased along with rest of the accused and then sprinkled petrol, set the deceased on fire; that the medical evidence supports the ocular version; that all the P.Ws have successfully established their presence on the scene beyond any shadow of doubt; that the contradictions, if any, are minor in nature. He has referred the case law reported as Gulzar Ahmed v. The State (2002 SCMR 590, Khizar Ilayat v. The State (2011 SCMR 429), Zulfiqar Ahmed and another v. The State (2011 SCMR 492), Niazuddin and another v. The State and another (2011 SCMR 725), Malik Aqeel Ahmed v. The State (2016 MLD 129) and Sajid Javed and others v. Additional Sessions Judge (West) Islamabad and others (2016 PCr.LJ 672).
9. Learned Additional Prosecutor General, on the other hand, has fully supported the impugned judgment while arguing that the same does not suffer from any infirmities or illegalities; that the judgment passed by learned trial Court is well reasoned and does not merit any interference by this Court.
10. The evidence of the prosecution witnesses finds an elaborate mention in the judgment of the trial Court, therefore, the same may not be reproduced hereunder for the sake of brevity and to avoid repetition.
11. I have heard the learned counsel for the respective parties and have perused the record available before me.
12. Perusal of record and evidence available brings the Court to the conclusion that prosecution has undeniably proven its case against the appellant on both counts for the offence alleged against him by examining numerous witnesses whose evidence remained un-shattered on material aspects of the case even after lengthy cross-examinations. The deceased had been done to death by the appellant by setting him on fire. The appellant had been arrested promptly and he himself was also found to be in burnt condition. During his statement under section 342, Cr.P.C, he did not dispute his presence on the place of incident, however raised the defence plea that he was trying to save the deceased which resulted in him being burnt as well and he also informed the complainant of the incident who malafidely blackmailed him with threats of a false case in his name if he didn't pay the complainant any money. In this regard, the appellant failed to examine any defence witnesses or produce any other evidence. He also failed to disclose the amount that the complainant allegedly asked for him to pay or as to how he tried saving the deceased. Such facts render his defence plea as baseless and is of no help to the appellant's case. Coming to the contradictions pointed out by the prosecution which have also been discussed by the trial Court, these contradictions in the statements of eye witnesses on which the defense counsel placed so much reliance are very minor in nature. In the court's mind, the primary consideration in appraising the evidence given by a witness is to determine several aspects; why has the witness offered to testify; has he seen the occurrence, if so does the witness have a motive to falsely implicate a person who was not among the culprits or to exaggerate the part played by any of them. Once these are satisfied, then comes the consideration of contradictions. However, it is pertinent to note here that a witness may make contradictory statements on some of the details of incidents in respect of the one he is deposing in court. These variations may well be due to mere lapse of memory or confusion caused in his mind by a relentless cross-examiner. In the present case, the depositions were made after a total of 5 years, which would justify such minor lapses. Moreover, it is not uncommon that a cross-examiner puts words in the mouth of a witness and the presiding officer is not vigilant to check it. The defence Counsel could not point out any material discrepancy in the evidence of the eye-witnesses, besides few minor ones including the distance from which the complainant party had heard the cries of the deceased, i.e. 2 acres or 2 kilometers. In this regard, it is held that the same are very minor in nature and any discrepancy in the establishment of the said facts will not cause any effect to the fact that it was in fact the appellant, who had set the deceased on fire. Moreover, it is well settled principle of law that minor contradictions are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies/contradictions. It needs no special emphasis to state that every contradiction cannot take place of a material contradiction and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness to be considered material. In the present case, the discrepancies so pointed out by the defence counsel are very minor in nature as already stated.
13. The contention of the learned counsel for the appellant regarding the prosecution witnesses being related to the complainant inter se and interested is of no consequence nor does it hold any legal worth. Despite the close relationship of the complainant and P.Ws with the deceased, their evidence after careful consideration is found trustworthy. Mere relationship with the deceased is no ground to discard trustworthy evidence. Reliance in this respect is placed on the case law reported as Raqib Khan v. The State (2000 SCMR 163). Further reliance is placed on the case of Nasir Iqbal Nasra and another v. The State (2016 SCMR 2152). Even then, the deceased was set ablaze in the presence of his father and other close relatives. It is unusual for them to set free. It appears extremely unreasonable to even consider such a fact. Reference is made to the case of Allah Ditta v. The State (PLD 2002 SC 52) and to the case of Islam Sharif v. The State (2020 SCMR 690), wherein it has been held that:-
"There appears no earthly reason for the witnesses to swap the assassin of their elderly father with an innocent."
14. Furthermore, if the presence of a witness is proven beyond doubt and no other independent witnesses were available in the case, it would be in a grave discourage of justice to insist upon independent corroboration. I am fortified by the rule laid down by the Hon'ble Apex Court in the case of Roshan v. The State (PLD 1977 SC 557). Furthermore, even if the evidence of other witnesses is taken out of consideration, the evidence of the complainant and RW-2 namely Abdul Razzaque is consistent, straight forward, confidence inspiring and trustworthy enough and their presence at the time of incident has been explained, therefore the evidence of the complainant and P.W-2 alone is sufficient to hold the appellant guilty of the charge. Moreso, the hon'ble apex Court has upheld conviction in the case of Niaz-ud-Din and another v. The State (2011 SCMR 725).
15. The post-mortem of the dead body was conducted which found injuries that coincide with the statements of eye-witnesses. Moreover, on 25.10.2010, several articles including anal/rectal swabs were sent to the chemical examiner who, per his report, detected human sperm and blood in the anal cavity swab of the dead body, which further reaffirmed the claims of sodomy against the appellant and accused.
16 The case of the prosecution is firmly structured on ocular account, furnished by the witnesses, viewed from any angle, natural and trust-worthy. Duration of the injury coincides with the fatality that befell the deceased. Wounds on the person of deceased are consistent with the weapon used i.e. petrol canister. The witnesses are in comfortable unison on all the salient aspects of the incident as well as details collateral therewith. The cross-examination remained inconsequential inasmuch as nothing adverse could be solicited from the witnesses except for a volley of suggestions, vehemently denied. These various pieces of evidence are inexorably pointing to the appellant with no space to entertain any hypothesis of innocence or substitution.
17. The hon'ble apex Court has been pleased to observe in the case of Aamir Hanif and another v. The State and others (2020 SCMR 675) has been pleased to observe as follows:-
Witnesses are in a comfortable unison on all the relevant details of the incident; cross-examination on the complainant, though inordinately lengthy, merely sets up a case of substitution that merits outright rejection; deceased's murder by his brother Ilyas and his son Azhar, as suggested by the defence, is a story that may not find a buyer... View taken by the courts below being well within the remit of law does not call for interference. Quantum of sentence opted by the High Court has also been found by us as a conscionable wage. Petitions fail. Leave declined.
(emphasis supplied)
18. The case law referred to by the learned counsel for the appellant is distinguishable on facts and circumstances from that presented in this case, hence the same is of no help to the defence counsel.
19. After proper assessment and evaluation of evidence, this Court concurs in the conclusion regarding the guilt of the appellant having been proven to the hilt. In view of the above discussion, circumstances and the ratio of the case law referred above, I am of the considered view that the prosecution has proven its case against the appellant and the view taken by the learned trial Court is just and appropriate, which does not call for any interference. Being of the view, vide short order dated 08.10.2020, the impugned judgment dated 30.08.2016 was upheld and the instant criminal jail appeal was dismissed.
These are the reasons for the same.
JK/G-35/Sindh Appeal dismissed.