LAKHAN alias CHALHO Versus State
ABDUL RASOOL MEMON, J.--- Through this common judgment we propose to dispose of the above Criminal Appeal No.D-25 of 2006 and Criminal Revision No. 18 of 2006 as both arise out of one and same Judgment dated 23.02.2006 passed by 1st Additional Sessions. Judge Jacobabad in case crime No.144/1999 P.S. Thul, under sections 302, 148 and 149, P.P.C. whereby appellants, namely, Lakkhan alias Challoo, Arbab, Gul Hassan, Miru alias Mir Muhammad and Ellahi Bux, were convicted and awarded them sentence to suffer imprisonment for life on two counts of murder of deceased Ghulam Yasin and Mst. Ganhwari and to pay Rs. 1,00,000/- (Rupees One Lac) each as compensation under section 544-A, Cr.P.C. to legal heirs of both deceased and in default thereto undergo S.I. for one year for each count. They were also awarded sentence under section 148, P.P.C. to suffer R.I. for one year and to further pay fine of Rs.5000/- each and in default thereto undergo S.I for one month. All the above sentences were ordered to run consecutively. Benefit of section 382-B was extended to all the above named convicts. The appellants have filed criminal appeal against their conviction and sentence mentioned above. The complainant Hafiz Khawaja Muhammad has also filed Criminal Revision Application for enhancement of the conviction of all the accused.
2. This is one of the unfortunate incident common in our society where the young people are murdered on the pity matters and on the ground of so called honour and cases being registered with different stories. The relevant facts of this case, briefly stated, are that on 12.09.1999 complainant Hafiz Khawaja Muhammad lodged FIR that an altercation had taken place between his brother Ghulam Yaseen and accused Lakhan alias Chalhoo and Arbab Bangalani over rain water and they issued threats that they would kill him. On the day of report in the morning time complainant his brother Ghulam Yaseen, Qabil, uncle Bago Khan and other family members were present in the home where accused Lakhan alias Chalhoo, Arbab and Gul Hassan with guns, accused Miroo and Illahi Bux with lathis all sons of Ghulam Nabi Bangalani entered and disclosed Ghulam Yaseen that he would not be spared, saying so accused Lakhan made fire upon Ghulam Yasin which hit on his neck and throat, accused Arbab made fire on his chest and Gul Hassan fired on his right arm resultantly he (Ghulam Yaseen) raising cries fell down. Accused Miroo and Illahi Bux also caused lathi blows to Ghulam Yaseen on his back and then ran away towards their houses. Complainant party went behind them and saw that accused Lakhan alias Challho with co-accused strangulated his wife Mst. Gahwrani with a piece of cloth with a result she died before them. The accused on gun point threatened the complainant party from approaching them and then fled by saying that they killed Ghulam Yaseen as 'KARO'. Complainant leaving the witnesses at dead body of Ghulam Yaseen went to police station Thul and lodged FIR.
3. SIP Khadim Hussain recorded the FIR, started investigation, proceeded to place of wardat, examined the dead body of Ghulam Yasin and prepared inquest report, secured blood stained earth and three empty cartages of .12 bore from there and sealed. Then also examined the dead body of Mst. Ganhwari lying in the courtyard of her house at the distance of two furlongs from the dead body of Ghulam Yasin, prepared memo/inquest report in presence of same mashirs so also joint mashirnama of place of wardat, referred the dead bodies to Taluka Hospital Thul for autopsy through P.C. Inayatullah and recorded 161, Cr.P.C. statements of the witnesses. On 19.10.1999, he arrested accused Lakhan, Arbab and Gul Hassan, who on 24.10.1999 led the I.O. and mashirs to their houses where accused Lakhan took out one gun and one handkerchief of blue colour with flowers from "LAI" tree and produced which were secured and scaled vide mashirnama at Exh.9/E. Accused Arbab and Gul Hassan also produced crime weapons viz. unlicensed guns, which were recovered under mashirnama Ex.9/F and Exh.9/G. I.O. sent the case property to the expert for examination and reports.
4. After completing the investigation, case was challaned against appellants/accused Lakhan, Arbab, Gul Hassan after while the names of appellants Miru alias Mira and Ellahi Bux were placed in column No.2 but later vide order dated 22.3.2000 trial Court on application under section 193, Cr.P.C. joined them as accused in the case.
5. The accused/appellants pleaded not guilty to the charge and claimed trial. The prosecution in all examined eight (8) witnesses. In their statements under section 342, appellants/accused pleaded their innocence and claimed their false implication. However, they neither examined themselves on oath under section 340(2), Cr.P.C. nor led any evidence in their defence.
6. Mr. Habibullah Ghouri learned Counsel for the appellants contended that the prosecution case is based on the evidence of interested witnesses whose evidence cannot be accepted without independent corroboration; that the alleged eye-witness have only given photogenic narration of the alleged occurrence but did nothing to rescue the deceased and did not raise hue and cry, if these witnesses were present on the spot, being brothers and uncles/close blood relatives they would have definitely raised hue and cry, as such, their presence on wardat was highly doubtful, thus, no explicit reliance can be placed on their testimony; that medical evidence does not coincide with alleged ocular evidence; that recovery of alleged weapons is also highly doubtful and FLS report is not helpful to the prosecution as the empties and guns allegedly recovered were sent for examination with a delay of about two months; that the motive has not been established in any manner and is not believable as appellants are real brothers and all five brothers would not commit two murder on such a pity matter of rain water; that in the order of learned trial Court for running sentence consecutively is unwarranted in law as the alleged offence is said to have been committed in one and same transaction. On all these submissions learned counsel for the appellants contended that the prosecution case suffers from various doubts for which benefit can be extended to the appellants but the trial Court has failed to make out proper appraisal of evidence and in view of material available on record the impugned judgment is liable to be set aside. In support of his submissions he has placed reliance upon the following case laws:
Jehanzeb v. The State (2003 SCMR 1998), Zeeshan Afzal alias Shan and others v. The State (2013 SCMR 1602), Tariq Pervez v. The State (1995 SCMR 1345), Pathan v. The State (2015 SCMR 315), Faiz Ahmed and another v. Shafiq-ur-Rehman and another (2013 SCMR 583), Mst. Shahista Bibi and another v. Superintendent, Central Jail Mach and 2 others (PLD 2015 Supreme Court 15), Sajjad Ikram and others v. Sikandar Hayat and others (2016 SCMR 467), Khadim Hussain v. Province of Punjab and others (2014 SCMR 669), Khan and another v. The State (1978 PCr.LJ 24), Muhammad Irshad and another v. The State (1999 SCMR 1030), Asghar v. The State (1999 PCr.LJ 20), Ali Shjer and others v. The State (2008 SCMR 707), Abdul Majeed and 2 others v. The State and another (2012 MLD 964), Abdul Malik and another v. The State and others (2008 SCMR 61), Muhammad Hussain v. The State (PLD 2015 Sindh 284), Iftikhar Hussain and others v. The State (2004 SCMR 1185) and Jehangir v. Nazar Farid and another (2002 SCMR 1986).
7. On the other hand Mr. Ghulam Ali Samtio learned Counsel appearing on behalf of the complainant argued that the occurrence took place in broad day light its FIR was lodged promptly, as such, there appears no question of false implication; that the evidence of prosecution witnesses is consistent on every aspect of the case and they have implicated all the accused who have actively participated in the commission of alleged offence in preplanned manner and showed their common intention, therefore, they are equally responsible; that ocular evidence is fully supported by medical evidence and even relationship between deceased and PWs itself is no ground to discard and discredit their testimony as their presence at spot was quite natural and that mere relationship of witness with deceased would not make them untrustworthy by any stretch of imagination. Lastly he submitted that both deceased were quite young and there was no mitigating circumstances warranted lesser punishment and prayed for enhancement of sentence of all the appellants to capital punishment being two murders committed at different places, therefore, no case for concurrently running of the sentences has been made out.
8. Learned Deputy Prosecutor General supported the arguments of the learned Counsel for the complainant.
9. We have given patience hearing to the respective contentions of the learned counsel for the parties and have perused the record of the case with their assistance.
10. It is not incorrectly argued that the complainant Khawaja Muhammad and P.W. Qabil as well as Bagho are brothers and uncle of deceased but it is well settled principle of law that merely on the basis of inter se relationship of PWs their evidence cannot be discarded specially where sufficient corroboratory evidence is available on record. The intrinsic value of the statements of the prosecution witnesses which is to be examined and not relationship reliance is placed on the case of Munawar Ali v. The State (2001 SCMR 614).
11. The prosecution case is based on ocular testimony, medical evidence recovery of incriminating articles and motive.
12. As per FIR the incident took place on 12.09.1999 at 6:00 a.m. and the report was lodged at 7:00 a.m. (within one hour) at police station Thull which was at the distance of six to seven kilometers from wardat. Complainant Hafiz Khawaja Mohammad deposed that at the time of incident he, P.Ws. Bago, Qabil, deceased Ghulam Yasin and other family members were present in their home when at about 6:00 a.m. accused Lakhan alias Chalho, Arbab, Gul. Hassan armed with guns, Miru and Illahi Bux with lathis entered their house saying they would not spare Ghulam Yasin and then accused Lakhan alias Chalho made fire from his gun upon Ghulam Yasin which hit him on his throat, Arbab fired on his chest and accused Gul Hassan also made fire from his gun which hit on the right-arm of Ghulam Yasin resultantly he raising cry fell down. Accused Miru and Illahi Bux also inflected lathi blows to him on his back. Then accused ran towards their house and they (PWs). followed them, when reached near the house of the accused they saw accused Lakhan alias Chalho strangulated his wife Mst. Ganhwari with cloth despite their hakals all accused committed her murder by strangulation jointly. He further deposed that his brother also succumbed to his injuries on spot. P.W.-2 Bago and P.W.-3 Qabil at Exhs.7 and 8 have also supported the complainant's version on all material points i.e. their presence at place of incident with deceased arrival of accused armed with guns and lathis, causing firearm injuries by accused Lakhan alias Chalho, Arbab and Gul Hassan to deceased Ghulam Yasin and Lathi blows to him on his back by accused Miru and Illahi Bux.
13. As per evidence of Doctor Abdul Hamid, at the time of autopsy, he found the following injuries on the body of deceased Mst. Ganhwari wife of Lakhan aged about 25 years.
1. One contusion size 2 x 10 c.m. on front side of neck with heavy swelling on whole neck.
On internal examination he found the following damages.
"Fracture of hyod bone of throat. All other organs were healty. Stomach contained digested emzymnes.
14. In his opinion the death of this deceased was caused due to shock and suffocation as a result of throttling. On the same day, he also conducted the post mortem of deceased Ghulam Yasin and found following injuries on his person:-
1. One LPW 6 c.m in diameter with inverted margins on mid throat through and through on back side of neck.
1. Five LPWs each 1 c.m. in diameter with inverted margins each 1 cm apart to each other on front side of chest.
2. Five LPWs each 1 c.m in diameter with inverted margins on right forearm on anterior aspect.
3. One contusion with defused swelling on middle 1/3rd of left forearm size 4 x 10 c.m.
4. Two contusions each 2x10 c.m. on back side of chest. On the internal e xamination I found the following damages.
"Fracture on hyod bone, 2nd and 3rd cervical bones and facture of left ulna bone, stomach contained digested enzymes. All other organs were normal and healthy.
15. According to medical officer, the death of deceased Ghulam Yaseen occurred due to shock and hemorrhage as a result of firearm injuries and hard blood substance and the injuries were ante-mortem. The probable duration between death and postmortem examination of both deceased conducted at 8:00 and 9:00 a.m. respectively were shown about two and three hours respectively by the doctor.
16. The contention of appellants' counsel regarding contradiction between ocular and medical evidence on number of injuries on dead body of Ghulam Yasin, time duration and cause of death of deceased Mst. Ganhwari, is devoid of force for the reasons that the medical officer Dr. Abdul Hameed supports the ocular evidence except the injury on left forearm of deceased Ghulam Yaseen. The above injury wad detected on close examination by the doctor at the time of postmortem and this injury might have been missed by police in inquest report and the witnesses both due to oversight and thus does not seem to be serious contradiction but it is common.
17. So far time between death and postmortem examination is concerned, though in the postmortem examination report Rigor Mortus has been shown to have been present all over the body of both the deceased but doctor has mentioned the time between death and postmortem as two and three hours in both deceased. The time is always calculated from (i) developing of Rigor Mortus. (ii) Postmortem standing (iii) body temperature and (iv) stomach contents. In this case doctor has only mentioned the Rigor Mortus present on all parts of body of both deceased. As per Q.3.6 of Parikhs' Text Book of Medical Jurisprudence and Toxicology for class rooms and court rooms revised Edition 2013 Rigor Mortus starts developing after three hours and present all over the body after twelve (12) hours, if on the basis of Rigor Mortus the time of death is calculated it would go back to 12 hours from the time of autopsy but simultaneously the doctor has mentioned in the postmortem report that stomach contents were with digestive emzynes. He has not mentioned the presence of the food, means dead bodies were empty stomach. It shows that the incident took place somewhere after mid-night or early in the morning and besides this non-mentioning of postmortem staining reveals that there was no developing of it upto postmortem examination which usually starts after three hours of death, as such, three hours had not been passed till the examination of dead bodies, so the doctor himself has mentioned the interval between death and postmortem as two hours, which appears to have rightly been calculated and the mentioning of Rigor Mortus by doctor is missing on his part.
18. With regard to the cause of death of deceased Mst. Ganhwari, in his opinion doctor has mentioned the cause as a result of throttling but from examination and the injury noted on the neck of deceased, doctor has clearly mentioned that there was heavy swelling on whole neck besides one contusion size 2 X 10 cm on front side of neck. From this it is evident that there was heavy swelling over whole circumference of the neck which could be caused by strangulation and thus supports the ocular evidence. Furthermore, strangulation is always committed with some support and it is not a job of one person and Mst. Ganhwari being a female she had not sufficient power to defend herself, as such, even absence of defence wound is not fatal to prosecution case.
19. The careful examination of ocular account in the light of medical evidence would show that it is in conformity with the allegations made in the FIR. The learned counsel for the appellants has not been able to point out any inconsistency in the statements of eye-witnesses to exclude the same from consideration or misreading or non-reading of the evidence or that the conclusion of the guilt of the appellants drawn on the basis of ocular evidence was suffering from any legal or factual infirmity calling for interference of this Court.
20. Coming to the question of what advantage the prosecution has gained from delay in sending the crime empties and weapons allegedly recovered from accused. The incident took place on 12.09.1999 and after arrest of accused Lakhan, Arbab and Gul Hassan they produced crime weapons viz. guns on 24.10.1999. The crime weapons and empties allegedly recovered from scene of crime, were dispatched on 04.11.1999 and reached in the office of Ballistic Expert on 12.11.1999. It is relevant to mention that no suggestion was given by the defence if any tampering was made in the case property in the intervening-period and even otherwise sending of crime empties before recovery of crime weapons were useless. However, no explanation is furnished by I.O. for retaining crime weapons for 25 days after the alleged recovery, it certainly destroyed the evidentiary value of the said piece of evidence, in view of case law reported in 2008 SCMR 707, but if this piece of circumstantial evidence is excluded even then there is strong ocular evidence coupled with medical evidence against the appellants/accused.
21. The motive behind the occurrence as disclosed in the FIR was altercation over rain water between accused Lakhan alias Chalho, Arbab. Bunglani and deceased Ghulam Yasin and further mentioned that accused declared the murders as Karo Kari. In his cross-examination complainant stated that one week before the incident an altercation had taken place between accused and deceased on rain water between their houses. P.W. Bago is silent on the point of motive, though he is uncle of the deceased. Why all five brother/accused selected early morning when usually everyone is to be present in his home, to attack upon deceased Ghulam Yaseen armed with guns and first fire was made on his throat leaving no room for his survival and immediately committed murder of wife of one of the accused. Nothing has been brought on record to show the circumstances and situations sufficiently provoking to commit such heinous offence wherein lives of two young people were snatched. The coming of accused with deadly weapons in the house of deceased shows them well planned and intention to commit the murder obviously with full of anger. The defence version of the accused person is also nothing but denial simplicitor on account of false involvement. It is also worthy to point out that the appellants/accused have not explained the cause of death of Mst. Ganhwari wife of accused Lakhan and recovery of her dead body from their house. For the death of Mst. Ganhwari appellants/accused did not get the case registered and nor they had made complaint to any noteable of the area. Non-explaining the murder of the deceased Gahwrani by any of the accused shows that some important facts as to causing of double murder of two young people have been concealed by two parties and what had happened immediately before the occurrence is not clear.
22. The motive as alleged in the FIR has not been proved. It is settled law that where motive alleged by the prosecution has not been suceessfully proved it may be considered as a mitigating circumstances qua quantum of sentence. In this respect reliance is placed on the case of Zeeshan Afzal alias Shani and another v. The state and another (2013 SCMR 1602). On this point we are also fortified by case law reported in 2003 SCMR 98 wherein Honourable Supreme Court of Pakistan altered the sentence of death to imprisonment of life on failure to satisfactory prove the motive alleged by prosecution considering it as a mitigating circumstance qua quantum of sentence.
23. For the reasons discussed above, it appears that the trial Court has rightly convicted the appellants/accused and awarded them imprisonment for life on two counts; but the order of trial Court for running of the sentences consecutively is unwarranted in law as both the murders are alleged to have been committed in the same transaction and thus ordinarily the sentence passed for such offence should have been ordered to run concurrently to each other. In this regard reliance is placed on the case of Muhammad Sharif v. The State (2014 SCMR 668) wherein the offence committed in respect of murder, wrongful confinement and abduction were treated as parts of the same transaction and it was ordered that the sentence passed for such offences-ought to have been ordered to run concurrently to each other and while allowing review all the sentences and imprisonment against the petitioner in the said case were ordered to run concurrently. Same dictum is laid down in the case of Mst. Shaista Bibi and another v. Superintendent Central Jail Mach and 2 others (PLD 2015 SC 15).
24. In the case of Ghulam Haider v. The State (1984 SCMR 887) while extending benefit of section 382-B, Cr.P.C. directed that the imprisonment for life on three counts of the convict be run concurrently in view of the circumstances of the said case as there was no enmity between the parties while in a case of Mst. Zubeda v. Falak Sher (2007 SCMR 548) the complainant filed petition before Honourable Supreme Court for obtaining a direction that the imprisonment for life awarded to the convict on four counts should run consecutively but his petition was dismissed.
25. As mentioned above, it is clear from the record that both the murders were committed in one and same transaction and there was a single trial of the said crime, therefore, by placing reliance on the case of Sajad Ikram and others v. Sikander Hayat (2016 SCMR 467) this criminal appeal is dismissed with modification that all the sentences awarded to the appellants shall run and deemed to have run concurrently and they shall have also to get benefit of section 382-B, Cr.P.C.
26. For the reasons recorded above, the criminal revision application filed by the complainant being devoid of merits is also dismissed.
JK/L-8/Sindh Order accordingly.