MASHOOQUE ALI Versus State
SALAHUDDIN PANHWAR, J .---Through the captioned appeals, appellants have challenged the judgment dated 05.10.2016 passed by learned Sessions Judge, Mirpurkhas in Session Case No.152/2010 arising out of Crime No.45/2010, under sections 302/34, P.P.C., Police Station Jhudo, whereby they have been convicted and sentenced to undergo rigorous imprisonment for life as "Tazir" and to pay compensation of Rs.100,000/- each to the legal heirs of deceased and in case of failure to further undergo S.I. for six months with benefit of section 382-B, Cr.P.C.
2. Brief facts of the case are that complainant Ghansham lodged FIR on 09.05.2010, stating therein that his sister Sharimati Salma went to take back the goats, as they committed trespass into the lands of Raees Bahadur Khan Lashari, there at about 8:00 a.m. he heard the cries of his sister Sharimati Salma, on that he, Mitho and Dhano went running towards the place of incident and there found the appellants/accused causing hatchet blows to Sharimati Salma who died on the spot.
3. After registration of the case, investigation started and on completion of the same report under section 173, Cr.P.C. was submitted before the trial Court.
4. Learned Trial Court after observing legal formalities provided under the Criminal Procedure Code framed charge on 17.08.2010 to which accused pleaded not guilty and prosecution evidence was summoned.
5. On conclusion of prosecution evidence, statements of the appellants were recorded under section 342, Cr.P.C., who had denied their guilt and pleaded false implication and thereafter, learned trial Court heard both the parties and proceeded to convict the appellants through impugned judgment.
6. Learned counsel for appellants contended that the prosecution case is fraught with contradictions, inconsistencies and improbabilities and as such the learned trial Court has not appreciated that the prosecution has failed to prove its case beyond reasonable doubt; that the incident took place during working time of laborers/Haris and all the eye-witnesses of incident are relatives of complainant; that there is no motive in the alleged incident nor the same was put forth by the prosecution; that the complainant himself has committed the murder of said deceased and he has involved the appellants in this case falsely only to satisfy his matrimonial dispute with them; that sentence awarded to appellants is against the law, hence, the impugned judgment is liable to reversal.
7. Contrarily, learned Deputy Prosecutor General has strongly opposed the arguments, advanced by learned counsel for the appellants by arguing that the appellants are directly charged for murder of Sharimiati Salma, hence the case against accused/appellants is fully established.
8. Arguments heard and record perused.
9. With regard to allegation against accused Kheto, it is admitted that evidence of Medical Officer Dr. Padma Suresh is not rebutted even by the present accused. It would be conducive to refer the evidence of complainant Ghansham who has stated that on 09-05-2010, his sister Sharimati Salma went to take back the goats, as they committed trespass into the lands of Raees Bahadur Khan Lashari, there at about 8-00 a.m., he heard the cries of his sister Sharimati Salma, on that; he, Mitho and Dhano went running towards the place of incident and there found the present accused causing hatchet blows to Sharimati Salma, the present accused then fled away. He leaving Mitho and Dhano over the dead body of Sharimati Salma went at Police Station Jhudo and lodged report of the incident. It was further stated by the complainant that accused Kheto being in league with rest of the accused committed death of deceased on account of matrimonial dispute.
10. From the evidence of complainant it reflects that main allegation of causing murder of deceased is against accused Kheto who along with co-accused Mashoque Ali and Khair Muhammad alias Khairu, as alleged by the complainant, caused murder of deceased. Thus, the charge against the accused (convict) Kheto was always different from that of the co-accused persons namely convicts Mashooque Ali and Khair Muhammad alias Khairu. Needless to add that a charge of sharing common intention shall always require proof that gathering of more than one was with active knowledge of ultimate consequence of their gathering i.e determined goal or likely to happen of a consequence in result of actions of all or any one of them. This has been the reason that terms 'common object' and 'common intention' have been defined by the Code itself along with consequences thereof. I would therefore humbly submit that failure or success in establishing such charge would not be of much weight when it comes to an independent and direct charge upon one of such more accused persons.
The direct and independent allegation of causing hatchet blows against the accused/convict Kheto came out through mouth of a blood-relation (real brother) who, otherwise, was not alleged to have any such motive to go in falsely accusing the Kheto for such direct allegation. In absence of such plea, the presumption normally is attached to such words particularly if the same remain un-shattered despite lengthy cross-examination as well find corroboration from other independent evidences. Reliance is placed on case of Zahoor Ahmed v. State 2007 SCMR 1519 wherein it was held as:
6. ... The petitioner is a maternal-cousin of the deceased, so also the first cousin of the deceased through paternal line of relationship and thus, in the light of the entire evidence it has correctly been concluded by the learned High Court that the blood relation would not spare the real culprit and instead would involve an innocent person in the case. Further it has rightly been observed that it was not essential for the prosecution to produce each of the cited witnesses at the trial.
Furthermore, the charge against the accused Kheto also finds support from another important piece of evidence i.e his confessional statement, recorded by Civil Judge and JM, Digri. The evidence of Mr. Raj Kumar, the then Judicial Magistrate, Digri who recorded the confessional statement, shows that on 12-05-2010 accused Kheto was brought before him by the police for recording of his confessional statement, after observance of usual formalities the confessional statement of accused Kheto was recorded. According to him, it was stated by accused Kheto that he alone committed death of his wife Sharimati Salma by causing hatchet blows to her.
11. The evidence of SIO/SIP Abdul Ghafoor reflects that after completing all legal formalities of the investigation he arrested accused Kheto, secured from him hatchet and prepared such mashirnama in presence of mashirs, produced accused Kheto before concerned Magistrate where he confessed his guilt.
12. The complainant and his witnesses as are detailed above were subjected to very lengthy cross-examination, despite of it, they have stood by their version on all material points so far death of deceased Sharimati Salma is concerned. The recovery of hatchet from accused Kheto together with his confessional statement before Magistrate could not be lost of sight under any pretext. Indeed, it appears to be a supporting evidence. I have also perused the evidence of Magistrate and there is nothing on record which may suggest that the confessional statement of accused Kheto was recorded after putting him under duress. It was denied by the Magistrate that the complainant was present at the time when he was recording the confessional statement of accused Kheto. The Magistrate is an independent person, he was having no grudge with either of the party, as such his evidence is to be believed least to extent of a voluntary confession. Needless to add that a voluntary confession, if appears to be ringing true, may hold conviction.
13. So far as the case of remaining two accused Mashooque Ali and Khair Muhammad is concerned, no material whatsoever has been brought on record against these two persons that actually they have committed the offence of murder in connivance with main accused as from the face of record, prima facie it appears that they have/had no relation with deceased Sharimati Salma, therefore, their intention to kill the lady is not proved by the prosecution. Only allegation against these two accused is of sharing common intention with main accused Kheto which in my humble view was never proved by prosecution. Moreover, both these accused have taken plea in the statements recorded under section 342, Cr.P.C. that they have been falsely involved in the case in hand due to enmity with Lashari community and in this regard also referred to Sessions Case No.157/2010 pending against them. I have also carefully examined the material available on record and found that accused Kheto has not named accused Mashooque Ali and Khair Muhammad to be the co-accused with him at the time of commission of the incident and the contention of learned counsel that they have been involved in this case falsely by the complainant at the instance of his Lashari Zamindar(s) to satisfy their enmity carries weight as they had no relation with the deceased. The evidence of complainant and his witnesses implicating accused Mashooque Ali and Khair Muhammad in the commission of offence is not reliable and believable.
14. In view of the above discussion, I am of the considered view that case against accused Kheto is proved beyond any shadow of doubt hence the Criminal Jail Appeal No. S-202 of 2016 filed by accused Kheto is hereby dismissed.
15. So far as Criminal Jail Appeal No. S-201 of 2016 filed by accused Mashooque Ali and Khair Muhammad alias Khairo, the prosecution has failed to prove their case against both these accused beyond any shadow of reasonable doubt hence Criminal Jail Appeal No. S-201 of 2016 filed by accused Mashooque Ali and Khair Muhammad alias Khairo is allowed and impugned judgment dated 05.10.2016 to their extent is set aside and these accused Mashooque Ali and Khair Muhammad alias Khairo were ordered to be released forthwith if not required in any other custody case by my short order dated 22.07.2019 and these are the reasons thereof.
JK/M-203/Sindh Appeal allowed.