ZULFIQAR ALI CHACHAR Versus State
AMJAD ALI SAHITO, J.--- Appellant Zulfiqar son of Meeran Chachar was tried by learned III-Additional Sessions Judge, Mirpur Mathelo in Sessions Case No.239 of 2009 re: State v. Zulfiqar and others, arising out of Crime No. 73 of 2008, registered at Police Station Adilpur-Ghotki for offences under sections 302, 337H(2), 114, 147, 148 and 149, P.P.C. and by judgment dated 07.12.2013, he was convicted and sentenced as under: i). For offences under sections 147, 148 read with section 149, P.P.C., appellant was sentenced for 02-years and fine of Rs. 2000/- payable to the legal heirs of deceased and in case of failure thereto he shall suffer further S.1 for one month more. ii). For an offence under section 302(b) read with section 149, P.P.C., he was sentenced to death as Tazir and he shall be hanged by neck till he is dead and to pay Rs. 100,000/- (One Lac) equally to the legal heirs of both deceased being compensation as required under section 544-A, Cr.P.C. or to undergo S.I. for 06-months in default thereof. iii). The appellant was extended benefit of section 382-B, Cr.P.C. for the period which he remained under trial prisoner.
2. The learned trial court made reference to this court for confirmation of the death of appellant or otherwise. By this judgment, we intend to decide Crl. Jail Appeal filed by the appellant and confirmation reference sent by the trial court.
3. Brief facts of the prosecution, as disclosed in the FIR, are that complainant Badal Chachar lodged FIR on 03.07.2008, alleging therein that Sikandar Ali alias Sher, aged about 50-years was his stepbrother and Zameer Ahmed, aged about 25/26 years was his maternal nephew. In the year 2006, Zulfiqar and others had committed murder of Sohail Ahmed son of Sikandar Ali and such case was registered by Sikandar Ali, brother of complainant at Police Station Adilpur, for which Zulfiqar Chachar and other's were annoyed and were saying to withdraw the case otherwise, they will be done to death. On the eventful day i.e. 02.07.2008, complainant along with his nephew Abdul Rashid and Shafique were grazing cattle at Adilpur Forest near Sanwalo Wari Masjid. It was about 4.00 p.m, when the complainant party saw that his brother Sikandar Ali and maternal nephew Zameer Ahmed were going from Adilpur to the village on the motorcycle. Zameer was driving the motorcycle. In the meantime, accused 1. Zulfiqar 2. Amanat Ali 3. Mukhtiar 4. Akhtiar 5. Shoukat 6. Mumtaz 7. Meeran 8. Rano and four unidentified persons, all armed with KKs, came on motorcycles and stopped at Sanwalo Wari Masjid near Jan Muhammad Society. All accused persons came in front of complainant party and accused Zameer instigated his sons Mukhtiar and Akhtiar not to spare them, on which accused Mukhtiar and Akhtiar aimed their weapons. Accused Meeran instigated his sons Zulfiqar and Amanat that as complainant party have not withdrawn the case, therefore, not to spare them. On his instigation, accused Zulfiqar made a straight fire of KK upon Sikandar Ali with the intention to kill him, which hit him and he fell down. Accused Amanat Ali made straight fire with KK upon Zameer Ahmed with intention of murder which hit him and he fell down. Accused went over Zameer Ahmed and Sikandar and said that they have died. Thereafter, accused made aerial firing and went away. Due to fear of weapons, the complainant party did not follow the accused. Thereafter, the complainant saw that his brother Sikandar Ali alias Sher received firearm injuries on his back and left thigh. Zameer received firearm injuries on his neck and both injured were unconscious. Complainant immediately brought both the injured at Taluka Hospital, Ghotki where injured Zameer succumbed to his injuries, whereas injured Sikandar alias Sher was referred to Rahimyar Khan hospital and in the hospital at Rahimyar Khan, he also succumbed to the injuries. Then, complainant brought his dead body to Taluka Hospital, Ghotki for postmortem and then went to Police Station and lodged above FIR.
4. The Investigating Officer after usual investigation submitted Challan under section 512, Cr.P.C., however, accused Amanat Ali, Akhtar, Shaukat Ali, Mumtaz and Meeran were declared as proclaimed offenders, however, remaining accused were arrested subsequently.
5. After completing all the formalities, the charge was framed against the appellant and others, to which appellant pleaded not guilty and claimed to be tried.
6. In order to establish accusation against accused, the prosecution examined following witnesses:
1. PW-1 Complainant Badal at Exh.14. He produced FIR and receipts at Exhs.14/A to 14/C.
2. PW-2 Abdul Rasheed at Exh.15.
3. PW-3 Tapedar Muhammad Paryal at Exh.17, he produced a sketch of Wardhat at Exhs.17/A to 17/C.
4. PW-4 Inspector Abdul Rasheed at Exh.19. He produced memos of inspection of dead bodies, inquest reports, 'memo of the place of occurrence, memo of recovery of clothes of deceased, letter, ballistic expert report at Exhs.19A to 19/J.
5. PW-5 Dr. Moula Bux at Exh.20. He produced postmortem reports of deceased at Exhs.20/A and 20/B.
6. PW-6 PC Mushtaque Ahmed at Exh.21.
7. PW-7 Muhammad Ilyas at Exh.22.
8. PW-8 Wazeer Ahmed at Exh.23.
7. Statements of accused persons were recorded in terms of section 342, Cr.P.C., in which they pleaded their innocence and denied the prosecution allegations. However, neither accused examined themselves on oath to disprove the prosecution allegations nor led any evidence in their defence. Accused Zulfiqar and Mukhtiar stated that they have a dispute with complainant party over landed property.
The learned trial court after hearing the learned counsel for the parties and appraisal of the evidence convicted and sentenced the appellant vide judgment dated 07.12.2013, which is impugned by the appellant before this court by way of filing instant appeal through the jail. However, remaining accused were acquitted of the charge by giving them benefit of doubt.
9. Learned counsel for the appellant argued that the impugned judgment is against the law and facts of the case; that the present appellant is innocent and has been falsely implicated in the case due to enmity; that all the witnesses cited in the case being closely related inter se are chance witnesses; that the medical evidence is in conflict with the ocular account; that on the same set of evidence, co-accused have been acquitted by the trial court by giving them benefit of doubt and convicted and sentenced the present appellant. He further contended that there are material contradictions. in the evidence of prosecution witnesses, which demolished the whole case of the prosecution and thus lastly prayed for the acquittal of the present appellant.
10. While rebutting the above contentions, the learned counsel for complainant argued that the appellant is named in the FIR with specific role, who along with co-accused committed double murder of Sikandar alias Sher and Zameer Ahmed; that ocular account is consistent with medical as well as circumstantial evidence; that after committing double murder, the appellant remained absconder and were declared proclaimed offender and subsequently in another case, he was arrested and produced before the trial court; that being a dangerous UTP through Notification, trial of the appellant was held in side the jail; that no material contradiction and discrepancy is pointed out by learned counsel for appellant to show his false implication in this case. He further contended that in these circumstances, the trial court has rightly awarded conviction and sentence to the appellant in accordance with law. Lastly, he prayed for dismissal of the instant appeal.
11. Learned Deputy Prosecutor. General adopted the arguments advanced by learned counsel for the complainant and supported the impugned judgment.
12. We have heard learned counsel for the parties and perused the record.
13. On careful perusal of material brought on the record, it appears that the prosecution case solely depends upon the ocular testimony adduced in shape of the evidence of the complainant Badal and eye-witness Abdul Rasheed, which is corroborated by the medical evidence produced by the medical officer Dr. Moula Bux coupled with circumstantial evidence. The record further reveals that in the year 2006, appellant Zulfiqar and others committed murder of Sohail Ahmed, who was the son of Sikandar Ali alias Sher. Such case was registered with Police Station Adilpur. The appellant party used to issue threats to the complainant party to withdraw the said case. In order to establish the charge, the prosecution examined complainant Badal (PW-1), who in his evidence deposed that on 02.07.2008 at 4.00 p.m., he along with nephew Abdul Rasheed and Zulfiqar Ali were grazing the cattle. They saw Sikandar alias Sher and Zameer Ahmed were going on a motorcycle. Meanwhile, appellant Zulfiqar and co-accusedd (named in the FIR) stopped motorcycles and on the instigation of accused Mira, appellant Zulfiqar made straight fire at Sikandar alias Shero which hit him and accused Amanat made straight fire at Zamir Ahmed which hit him. Thereafter, all accused ran away from the place of incident. Both injured were shifted to hospital, but they succumbed to the injuries. In cross-examination, complainant denied the suggestion that he has falsely implicated the present appellant.
14. In order to support the version of the complainant, the prosecution examined Abdul Rasheed (PW-2), who has fully supported the contents of FIR and prosecution story. From the perusal of evidence of an eye-witness, it appears that the present appellant and absconding accused Amanat Ali have fully participated in the occurrence being armed with deadly weapons. The prosecution also examined Inspector Abdul Rasheed. He was directed to get the postmortem of deceased Zameer Ahmed available at Taluka Hospital Ghotki conducted by a doctor. He has also visited the place of occurrence and secured 12 empties of 7.62 bore of KK and bloodstained earth under Mashirnama. The bloodstained earth of both deceased was sent to the Chemical Examiner, Rohri for its report which was received in positive. The prosecution also examined other witnesses. They have also supported the prosecution story. All the witnesses were cross-examined by the defence counsel at length, wherein multiple questions were asked to shatter their confidence and also a presence at the scene of offence, but could not extract anything from their mouth and they remained consistent on material points.
15. There can be no denial of the legally established principles of law that it is always the direct evidence, which is the material to decide a fact (Charge). The failure of direct evidence is always sufficient to hold a criminal charge as not proved but when the direct evidence remains in the field with a test of its being natural and confidence inspiring then requirement of independent corroboration is only a rule of abundant caution and not a mandatory rule be applied inversely in each case. In the instant matter, both eye-witnesses have sufficiently explained the date, time and place of occurrence as well as each and every event of the occurrence in clear-cut manner. The parties are known to each other as is evident from their evidence, so there was no chance of mistaken identity of the appellant.
16. So far the plea taken by learned counsel for the appellant that the witnesses are inverse related, hence they were interested witnesses having no force. Mere relationship of these witnesses with the deceased alone would not enough to discard the testimony of the complainant and his witnesses. In the matter 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 them to involve the innocent person at the cost of the escape of real culprits. We would mention here that where the witnesses are in blood relations then normally the possibility of substitution becomes rare.
17. The direct evidence also finds corroboration from the medical evidence with regard to the cause of death and time of the incident. It is established from the evidence of Medical Officer Dr. Moula Bux, who received dead body of Sikandar Ali alias Sher for postmortem examination, which was identified by PC Mushtaque Solangi and Abdul Rasheed Junejo on 03.07.2008 and he started postmortem at about 02.40 p.m. and completed at 05.15 p.m. On external examination, he found the following injuries.
Injury No. 1/A. Lacerated firearm wound size 01 cm in diameter X through and through into chest cavity on the left side of the chest (wound of entry).
Injury No. 1/B Communicating injury of 1/A size 03 cm in diameter into through and through on the left side of the chest (wound of exit)
Injury No.2/A Lacerated firearm wound size 02 cm in diameter into through and through on middle of left thigh (wound of entry)
Injury No.2/B Communicating injury of 2/A of the size of 03 cm in diameter into through and through on left iliac-crest (wound of exit).
From external as well as an internal examination of deceased Sikandar Ali, Medical Officer opined that death occurred due to shock and hemorrhage as a result of a firearm discharge, causing fatal damage of heart and left lung leading ultimately to death. He further opined that injury Nos.1/A and 1/B are very fatal in the ordinary course of life along with collectively injuries. The injuries ante-mortem in nature. Time lapse between injuries and death was about 21/22 hours. The time between death and post-mortem was about 2/3 hours.
Medical Officer also received dead body of deceased Zameer Ahmed brought by P.C. Mushtaque Solangi and identified by complainant Badal and Pir Bux. He started postmortem of deceased at 5.40 p.m. and finished at 7.15. On external examination of deceased Zameer Ahmed son of Nazeer Chachar, the medical officer noticed the following injuries.
Injury No. 1/A Lacerated firearm wound size 01 cm in diameter into through and through on the front of the neck just on the left side (would of entry)
Injury No.1/B Lacerated firearm wound size 03 cm in diameter into through and through below occipital region of the head (wound of exit).
From the external as well as internal examination of deceased Zamir Ahmed, Medical Officer opined that death has occurred due to shock and hemorrhage as a resulting discharge from firearm causing fatal damage to the brain, a principle cause of death. The injuries were serious in an ordinary course of life and in ant-mortem in nature. He further opined that probable time between injuries and death was about 1-1 /2 hours and probable time between death and postmortem was about 30 minutes, which suffice to say that the cause of death of deceased Sikander Ali alias Sher and Zameer Ahmed were unnatural and thus, this also corroborate the ocular testimony furnished by the complainant and his eye-witness.
18. Turning to the case in hand, the motive setup in this case, which stood established and postmortem examination on the dead bodies of the deceased was also conducted with no lapse of time. The investigating officer during the course of investigation secured empties and blood stained earth from the place of occurrence, which were sent to the office of the chemical examiner and received report in positive, supported by medical evidence. Hence, the above piece of evidence substantiates the ocular testi- mony of complainant and his eye-witnesses. The appellant in his statement recorded under section 342, Cr.P.C. denied having participated into the occurrence and claimed that due to enmity, he has been falsely implicated in this case.
19. As to the sentence, a lenient view cannot be taken as the circumstances of this case indicate that the act of the appellant was gruesome and merciless. The deceased Sikandar Ali alias Sher, aged about 50 years and Zameer, aged about 25/26 years were deprived of their lives only on the ground that complainant party refused to withdraw from the case registered against appellant Zulfiqar and others in respect of murder of one Sohail, son of Sikandar Ali alias Sher (deceased in this case). For offence of murder, death is normal sentence unless mitigating circumstances exist to justify a lesser penalty. We have not been perused to see any mitigating or extenuating circumstances in favour of appellant for the lesser sentence as he has committed murder intentionally.
20. The upshot of the above discussion is that the prosecution has successfully established its case against appellant Zulfiqar Chachar through ocular account furnished by eye-witnesses, which is corroborated by the medical evidence coupled with circumstantial evidence. Learned counsel for the appellant has failed to point out any material illegality or serious infirmity committed by the learned trial court while passing the impugned judgment, which in our humble view is based on an appreciation of the evidence and the same does not call for any interference by this court. Thus, the conviction awarded to the appellant by the trial court is hereby maintained and the instant Crl. Jail Appeal filed by the appellant Zulfiqar Chachar merits no consideration which is dismissed accordingly and the death penalty is confirmed. Death Reference No.09 of 2013 is answered in the AFFIRMATIVE.
19. These are the detailed reasons in support of our short order dated 05.09.2018.
JK/Z-7/Sindh Appeal dismissed.