GHULAM NABI Versus State

KHADIM HUSSAIN TUNIO, J.--- Through this Cr. Jail Appeal, appellant Ghulam Nabi has impugned judgment dated 08.05.2008 passed by 1st Additional Sessions Judge, Hyderabad in Sessions Case No.292/1991, whereby he has convicted the appellant and awarded him punishment to suffer R.I. for life under section 302(b), P.P.C. and fine of Rs.1.00,000/- to the legal heirs of deceased under section 544-A, Cr.P.C. and in case of non-payment of compensation to suffer R.I. for six months more. Learned 1st Additional Sessions Judge extended to the appellant the benefit of section 382-B, Cr.P.C.; whereas acquitted co-accused viz: Shahzad alias Bablo and Rizwan Hussain under section 265-H(1), Cr.P.C. by extending to them benefit of doubt.

2. Succintly stated, the prosecution case is that on 07.03.1991 at about 11.00 a.m. complainant Jamshed, his brother deceased Aftab and a relative Naveed Samoon arrived at Hyderabad Public School in a car, to take Adnan a student and cousin of complainant, as usual. While they came out waiting at the gate of the school, they found appellant Ghulam Nabi Siyal and acquitted co-accused Agha Suhail Ahmed, Shahzad Memon and Rizwan Shaikh, available in the car of Rizwan Shaikh, and on seeing the complainant party; also PW Lakhadino who had arrived there at that time, they came out of the car, having pistols and mousers in their hands. Acquitted accused Agha Suhail grappled with Aftab and appellant Ghulam Nabi Siyal, straight away fired upon Aftab, hitting him on his head and on receiving injury, he fell down on the ground while other accused also opened fires upon the complainant party which they managed to ward off lying on the ground. Complainant and other persons raised cries; whereas the culprits managed to escape successfully in the car. Thereafter, the complainant party found that the bullet had hit the deceased Aftab causing him an injury through and through across his head. The complainant party, therefore took the injured to the Emergency Ward in the Civil Hospital, where the doctors provided him first-aid advised that the injured be taken to Karachi; however, on way the injured succumbed to his injuries at Jamsitoro while being taken to Karachi, hence his dead body was brought back Civil Hospital and the complainant approached the concerned police station and lodged FIR stating that the culprits had caused the death of Aftab in complicity with each other on account of an skirmish that took place few days back on a Thursday due to parking of the vehicle when they claimed at the time that they would take the revenge.

3. The investigation was carried out by the police, during the course of which, the Investigating Officer got the postmortem of the dead body of the deceased conducted, recorded statements of witnesses, arrested the appellant Ghulam Nabi Siyal and co-accused namely Shahzad alias Bablo, Rizwan Hussain and one Agha Suhail Ahmed. Recoveries were made, relevant mashirnamas were prepared and on its completion, the Investigation officer submitted his report forwarding the appellant and co-accused to stand their trial as per law.

4. A charge was framed against accused on 28.03.1993 as (Ex.18) to which they pleaded not guilty and claimed to be tried vide pleas as (Ex.5-8) respectively.

5. During course of the trial, on an application under section 5 of Sindh Children Act, the case of co-accused Agha Suhail was bifurcated vide order dated 11.03.1998 and the charge was amended on 28.03.1998 against the other three culprits namely Ghulam Nabi, Shahzad alias Bablu and Rizwan Sheikh, to which they pleaded not guilty vide pleas as (Ex.19-21).

5(sic.) The prosecution, in order to prove its case, examined PW-1, Complainant Jamshed, as (Ex.23), who produced FIR as (Ex.24); PW-2 Naveed Ahmed as (Ex.25), who produced Statement under section 164, Cr.P.C. as (Ex. 26); PW-3 Soonharo as (Ex. 27); PW-4, Lakhadino as (Ex. 28), who produced memo of arrest and recovery and his statement under section 164, Cr.P.C. as (Exs. 29 and 30); PW-5 Dr. A.Ghafoor as (Ex. 33), who produced memo of dead body as (Ex. 34), Danistnama as (Ex. 35), memo of clothes of deceased as (Ex. 36) and memo of place of incident as (Ex.37); PWT6 Tapedar Naeem Shah as (Ex. 39), who produced sketch of place of incident as (Ex. 40); PW-7 Muhammad Younus as (Ex. 41.), who produced Lash-Chaks form as (Ex. 41) and receipt of dead body as (Ex. 42). Thereafter, learned Public Prosecutor moved application under section 540, Cr.P.C. for recording evidence of Dr. Ali Mohammad Memon, which was allowed; however learned Prosecutor examined PW-8, Dr. Anwar Hussain Memon as (Ex.47) in place of Dr. Muhammad Ali, who permanently shifted abroad as (Ex.48) and thereafter DDA for State filed statement as (Ex. 49) and closed prosecution side on 25.08.2007.

6. Thereafter, statement of appellant Ghulam Nabi under section 342, Cr.P.C. was recorded as (Ex. 50), who produced medical certificate and newspapers as (Ex.51 to 53) respectively. Statement of co-accused Shahzad was recorded under section 342, Cr.P.C., who produced copy of FIR of instant crime, but did not examine himself on oath and even did not lead any evidence in defence. Learned counsel for the appellant examined Muhammad Iqbal Bureau Chief of Awami Awaz, Karachi as (Ex. 57) and Dr. Anwar Ali Memon as (Ex.58), they were also cross-examined by DDA. Reports of Chemical Examiner and Ballistic Experts were produced as (Exs. 61 and 62) respectively.

7. I have heard Mian Taj Muhammad Keerio, learned counsel for the appellant, who has urged that incident took place in the school where Chowkidars, teachers and other people were present, but none of them were cited as witnesses in the case; that there is delay in recording of statements under section 161, Cr.P.C. of PWs; that there is delay in sending articles to the Ballistic Expert for examination and report; that the appellant has falsely been implicated in the case due to a quarrel between both parties on parking of car at the Public School; that all the prosecution eye-witnesses are interested and chance witnesses; that PW Lakhadino was an employee of Forest Department and on the day of incident he was on duty; that PWs did not witness the incident; that in the statement of the appellant recorded under section 342, Cr.P.C. no question was put to him regarding alleged motive of the murder viz. previous enmity between the appellant and the deceased; that none from public was made witness of recovery; and that the appellant is behind the bars for more than 11 years. According to him crime empties were sent to expert on 18.5.1992 though the same were recovered on 07.03.1991 and 08.03.1991 respectively; that the appellant is innocent and stood falsely implicated in the instant crime hence impugned judgment may be set aside and appellant be released or the sentence awarded to the appellant by the trial Court may be converted as already served. He has cited case law reported in 1990 MLD 30, 1990 PCr.LJ 1840, 1994 PCr.LJ 566,1995 SCMR 127; 1995 SCMR 1345, 1999 SCMR 1220, 2002 PCr.LJ 1914, 2007 SCMR 162, 2008 SCMR 95, 2008 SCMR 123, 2008 PCr.LJ 194, 2008 PCr.LJ 1752, 2009 PCr.LJ 1119, 2009 SCMR 1142, 2010 PCr.LJ 461, 2010 SCMR 141, 2013 YLR 1527, 2014 SCMR 338, 2014 SCMR 1178 and SBLR 2016 Sindh 447.

8. Mr. Shahzado Saleem, A.P.G. for State submitted that learned Trial Court rightly convicted and punished the appellant by way of impugned judgment which merits no interference; that there is no delay in lodging of FIR; that evidence of the prosecution witnesses is consistent on material aspect of the matter; that though the witnesses are related to the complainant but since their evidence is consistent and no material contradictions have been pointed out in their evidence, as such evidence is reliable and confidence inspiring; that the crime weapon has been recovered on the pointing of appellant Ghulam Nabi Siyal; that the medical evidence is in conformity with the ocular testimony; that the prosecution has established the case against the appellant, therefore, he has rightly been convicted and punished and that he does not deserve any concession/remission in his sentence; therefore, instant appeal may be dismissed.

9. I have given due consideration to the submissions advanced by the learned counsel for appellant and as well as learned APG and have perused the evidence available on record carefully with their assistance. Admittedly, this incident took place on 07.03.1991 at about 11:30 a.m. in the daylight whereas FIR was lodged on 07.03.1991 at 1600 hours. It is worth noting that in the mean time the complainant had taken the deceased in the injured condition to LMCH in their vehicle, from where after receiving first-aid, they were referred to Agha Khan Hospital, Karachi and while the deceased was being taken to Karachi through ambulance in injured condition he took his last breath and expired on the way near railway crossing Jamshoro, thereafter complainant, his cousin Naveed and Asadullah returned back to LMCH Hyderabad in the meanwhile their other relatives also reached at LMCH Hyderabad; whereas, the complainant left the dead body at Hyderabad and went to Police Station Hussainabad to lodge his report. All this happened within a span of 4-1/2 hours when the police station was at the distance of 1/2 kilometer. Thus in the circumstances it cannot be said that the FIR was lodged with delay, rather it appears that there was no undue delay. It also cannot be said that the complainant party could manage to fabricate a false story of incident to implicate the appellant wrongly/falsely by fabrication. The day, time and place where the incident took place have not been denied or disputed so the injuries on the person of dead body of deceased Aftab have not been disputed. On examination of statement of complainant, who is an eye-witness of the incident, it transpires that in his examination- in-chief, he has testified that "As soon as we came out from the school, we saw Lakhadino P.W was standing there. We parked our vehicle near the gate of public school. All the four accused persons namely; Ghulam Nabi, Agha Suhail Siyal, Shahzad Memon and Qurban Shaikh were standing near the gate at the distance of 10/15 paces away from us who were already sitting in their car. On seeing us they came out from their car armed with pistol. My brother Aftab also came out from our car. Accused Agha Suhail came there and caught hold him. Accused Ghulam Nabi came there and fired upon him with pistol which hit him on his head. After firing my brother Aftab fallen on the ground. Other accused also fired, we made sit on the road and raised cries. Thereafter, accused persons ran away by their car. We then noticed that the fire bullet had hit my brother at the head which crossed from one side to other side. We then got Aftab to LMCH Hyderabad in our vehicle from where after receiving first-aid, they have referred to Agha Khan Hospital Karachi, while we had taking him to Karachi through ambulance. He expired in the way near railway cross Jamshoro. I myself, my cousin Naveed and Asadullah were also present in the same ambulance. We then returned back to LMCH in the meanwhile other relatives had also reached at LMCH." Similarly, another eye-witness namely Naveed Ahmed by deposing in his examination-in-chief stated that "As soon as we came out of the gate of school PW Lakhadino was seen by us coming from Unit 2 Latifabad. We parked our vehicle near the gate facing towards the wall. We also noticed that one F-X car was standing near the bank facing towards Autobhan road. As soon as we parked the vehicle and got down from the vehicle, Agha Suhail, Ghulam Nabi Siyal, Rizwan Shaikh and Shalizad alias Babloo Memon also came out from their car. Deceased Aftab also go ahead after getting down from the vehicle. Agha Suhail caught hold of him while accused Ghulam Nabi Siyal had fired upon him from his pistol which hit him on his head. Thereafter, other accused had fired upon us. We laid down ourselves on the ground and raises cries and accused thereafter went away in their car. We saw the Aftab, the bullet had hit him and crossed from his body. Thereafter I along with Asadullah and Jamshed took the injured Aftab in the vehicle to LMCH for first-aid. After giving first-aid Aftab was referred to Agha Khan Hospital Karachi. While we were taking the injured to Agha Khan Karachi Hospital in ambulance injured Aftab expired at the Railway crossing of Jamshoro, thereafter, we came back to Civil Hospital Hyderabad where our relatives had also arrived and dead body was taken to mortuary for postmortem." So also PW Lakhadino (Ex.28) deposed that "when I reached at the distance of 4.0/50 paces away from the gate of public school, I saw that one vehicle was standing near bank which is situated at the gate of school. One other car came from inside the public school, which also stand on the side of the gate, in which boys of Samoons were sitting namely Aftab, Jamshed and Naveed. They all got down from the vehicle. While four persons sitting in another car got down from it namely Ghulam Nabi, Agha Suhail, Rizwan Shaikh and Shahzad Memon. All the four persons were armed with T.T Pistols. They went towards to the boys of Samans and that boys also came forward, namely Aftab, Jamshed and Naveed. Accused Agha Suhail grappled with Aftab while accused Ghulam Nabi Siyal fired from his pistol at the head of Aftab. Aftab sustaining injury fell down. Other accused also made firing at boys of Samans. Naveed and Jamshed also got down on the ground while accused went away in the car at that time, I was alone whereafter one Asad Samoon also came running from inside the School. I then went near to the injured Aftab who was removed by Jamshed, Naveed and Asad to vehicle. I also noticed that injured Aftab had bullet injury on his head through and through and thereafter, I went to Machhi Goth to my maternal uncle. Jamshed and others removed the injured towards hospital. At the evening time when I came to my house where I learnt that injured Aftab had died." In their cross-examination, on questions challenging their aforementioned testimonies, the complainant/eye-witness Jamshed answered that "It is incorrect to suggest that in fact I was not present at the place of incident and I have been informed by the police on telephone. It is incorrect that deceased had dispute with Faisal Kashelo, Shahid Kaimkhani and Mumtaz Chandio. I do not know whether Faisal Kashelo was arrested by police in this case. It is incorrect to suggest that at time of incident accused Ghulam Nabi was passing from there and he had received injury. I do not know if dacoit Bakhtarband was with the assistance of Ayub Samoon. It is incorrect that after death of said dacoit we have been threatened by Faisal, Shahid and Mumtaz and by other companions of Bakhtarband dacoit. It is incorrect that after the threats issued by the companions of dacoit we had arranged for guard at our village. It is incorrect to suggest that prior to this incident there was enmity with accused persons and us over the student's union election, therefore, we have got implicated the present accused in this case falsely. It is incorrect to suggest that I have not seen such incident." While the other eye-witness namely Naveed Ahmed replied the question put forth by the defence during his cross-examination that "It is incorrect to suggest that I have not witnessed the incident and that the police had informed us about the incident on telephone. It is incorrect to suggest that injured Aftab was not removed by us to hospital, but was removed to hospital by police of Husainabad Hyderabad. It is incorrect to suggest that I have deposed false evidence." So also PW Lakhadino testified in this cross-examination that "it is incorrect to say that I had got appointed by Anwar Samoon who is Range Forest Officer. It is incorrect to suggest that at the time of incident I was not present at the place of incident and the complainant had given my name as an eye-witness falsely. It is incorrect to suggest that I am deposing falsely at the instance of complainant party. It is also incorrect to suggest that I had not seen the incident."

10. Therefore, in view of the above mentioned statements of eye-witnesses, it appears crystal clear that these eye-witnesses have deposed actual facts consistently that the appellant Ghulam Nabi caused the death of the deceased Aftab as alleged against him. Complainant is brother of deceased Aftab and his presence at the place of incident cannot be said to be unnatural. Moreover, in view of that fact they were present together at the place of tragedy for picking their cousin from Public School Hyderabad. Their evidence appears to be just straightforward, inspiring confidence and fair. So far as the other eye-witnesses Naveed is concerned, his testimony too appears to be straightforward, fair and confidence inspiring. The learned counsel for the appellant during his oral submission challenged the presence of eye-witnesses at the place of occurrence for the reason that they happen to be resident of 24/25 kilometers away from the place of incident, therefore, according to him, they were not natural witnesses and implicated the appellant in the present case falsely. To me, submission of learned counsel does not appear to be sound, forceful, having already considered their testimony fair and straightforward and also that I could not lay hand on any suggestion during cross-examination of these witnesses challenging their presence at the place of tragedy on this count. Merely, admitted or being caste-fellow of person with deceased, challenged or unchallenged does not necessarily/essentially in all circumstances, turn such person when called for testimony, into an interested witness, moreso when there is no such rigid rule to presume as such conclusively. In this respect, I am fortified in my view with the principle laid down by the Hon'ble Apex Court wherein it has been held that mere relationship of PWs with deceased is no ground to discredit their evidence if it is proved that it is straightforward, fair and inspires confidence. In case it is required, reference may be made to the cases of Mudassir alias Jamie v. The State (1996 SCMR 2003), Saeed Akhtar and others v. The State (2000 SCMR 383), Noor Mohammad v. The State and others (2005 SCMR 1958), Mohammad Waris v. The State (2008 SCMR 784) and Sahib Khan v. The State (2008 SCMR 1049). So also reference may be made to the case of Zulfiqar Ahmed and another v. State (2011 SCMR 492), wherein it is held as:

".......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 cased titles 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 falsely involve the accused."

11. Let me be a little specific that to bring a witness within meaning of 'interested' it is always necessary for the defence to establish that there was a motive for such a witness to falsely involve the accused and if witness is blood-relative of deceased the motive must be so grave that it can in normal course could motivate a blood-relation to substitute a real culprit with an innocent. Be that as it may, Jamshed Ahmed, Naveed Ahmed and Lakhadino, eye- witnesses, according to their statements, were present at the time of occurrence at the place of incident for picking their cousin to go to village, does not appear to be unnatural, regardless of the fact that they resided anywhere at a distant place from place of occurrence. Under the circumstances, I am not impressed with the contention of learned counsel. I have already mentioned herein above that that the eye-witnesses, complainant Jamshed Ahmed, Naveed Ahmed and Lakhadino have consistently testified that the appellant Ghulam Nabi Siyal caused the death of deceased as alleged against him. I have scanned the medical evidence, which fully corroborates the ocular evidence of these three eye-witnesses on point of injuries found on the body of the deceased Aftab Ahmed. Here, it is pertinent to point out that the prosecution examined PW Lakhadino (Ex.28) as an eye-witness. During the course of arguments, learned counsel has made oral submission that he was not present at the place of incident, as he was on duty and serving in the Forest Department being government servant. In the circumstances, particularly, when the other two eye-witnesses have consistently made their testimony involving ambiance in commission of the offence, I prefer to even ignore the evidence of PW Lakhadino. Even then there is sufficient ocular evidence of two eye-witnesses corroborated by medical evidence which is alone sufficient to establish the case of prosecution against the appellant and I hold this accordingly.

12. With regard to circumstantial evidence i.e. recovery of crime of weapon at the instance of appellant who led the police party, it may be stated that this recovery was made as was pointed out by him so the weapon was taken into as produced before I.O. namely SIP/SHO Mohammad Younis in presence of mashirs namely Lakhadino Babur and, Soonharo Choohan. Although learned counsel for appellant made oral submission that there is violation of section 103, Cr.P.C. and in this disputed the presence of PW Lakhadino Babur being government servant and averred that he being a servant in forest department could not be present at the time of recovery, it may be mentioned that it is well established that the section 103, Cr.P.C. is not applicable in the circumstances when appellant led the police party, took out and produced the crime weapon. In this view, respectfully stated I am fortified by the principle laid down in the case reported as The State through A.G. Sindh v. Shankar (1997 SCMR 1000) and Mohammad Akram v. The State (2006 SCMR 1567), therefore, the oral submission of the learned counsel does not seem to have a force in it.

13. Now, adverting to the submission of learned counsel that in the statement of appellant under section 342, Cr.P.C. no question was put to appellant regarding previous enmity between appellant and the deceased, in first place, it may be pointed out that no suggestion was put forth to the P.Ws in their cross-examination regarding enmity or motive; secondly, it may be stated that it is not always necessary that for the purpose of commission of capital offence there should always be a motive, hence in my view the contention of learned counsel for appellant has no force. Even otherwise, it is also by now well settled principle of law that where the accused stand strongly connected with the commission of offence, proof or non-proof of motive becomes immaterial. Reference may be made to the case of Mohammad Waris v. The State and another (2007 SCMR 1535). It is not a case, where motive can be said to be shrouded in mystery but even if for the sake of arguments, it had been so even then awarding of lesser penalty would not have been justified in absence of proving any mitigating circumstances.

14. Lastly, it may be stated that learned counsel, during the course of oral submission took a plea that the appellant had remained in custody for about 11 years, apparently for sympathetical consideration as to quantum of sentence awarded to the appellant, however, in the stated scenario, I do not find any mitigating or extenuating circumstances brought on record to justify for reducing or converting the sentence of imprisonment for life as already undergone since the learned trial Court has already taken a lenient view while awarding lesser punishment i.e. imprisonment for life instead of death penalty. The lesser punishment, thus appears to be justified calling for no interference.

15. So far the case law referred by the learned counsel for the appellant does not appear to be applicable in the peculiar circumstances of the case in the present appeal, therefore, of no assistance to appellant.

16. In view of whatever has been discussed above, I am of my firm opinion that the present appeal merits no interference. I, therefore dismiss the same accordingly along with M.A. No.6244 of 2011 (under section 426, Cr.P.C.) filed by the learned counsel for the appellant as the same has become infructuous.

JK/G-18/Sindh Appeal dismissed.