HAZAR KHAN Versus State

1. MUHAMMAD SALEEM JASSAR, J.--- Through this Criminal Jail Appeal the appellants/convicts namely, Hazar Khan son of Jam Khan Khokhar, Allah Rakhio son of Arbab Ali Katohar, Jalal son of Arbab Katohar and Gul Bahar son of Arbab Katohar have challenged the Judgment dated 03.09.2013, passed by learned Sessions Judge, Khairpur in Sessions Case No.320 of 2005 (Re: The State v. Hazar Khan and others) being outcome of FIR No.144 of 2005, registered at P S A Section Khairpur, under Sections 302, 324, 337A(i), 337A(ii), 337-L(2), 504, 148, 149, P.P.C., whereby he convicted the appellants for offences punishable under Sections 302, 148 and 149, P.P.C. and sentenced each of them to suffer R.I. for life and to pay compensation of Rs.1,00-000/- (Rupees One Lac only) to the legal heirs of each of the deceased. The appellants were also convicted for offence punishable under sections 324, 337A(i), 337A(ii), 337-L(2), P.P.C. and sentenced to undergo R.I. for five years and to pay Daman to the tune of Rs.10,000/- each. In case of default in payment of compensation to the legal heirs of the two deceased the accused/ appellants were ordered to undergo S.I. for six months more. However, the appellants have been extended benefit of Section 382-B Cr.P.C. All the sentences have been ordered to run concurrently.

2. The brief facts of the prosecution case, as per aforesaid FIR lodged by complainant Ghulam Mohammad Katohar on 02.10.2005, are that he and his brothers own agricultural lands. They planted fresh date palm trees on a piece of their land. On the day of incident complainant and his brothers Hakim Ali alias Muharram Ali, Allah Bakhsh, Lal Bakhsh and nephew Wali Muhammad were present in their houses. Some children came to them and informed that cattle of Hazar Khan had entered in their lands and damaged the freshly planted date palm saplings, whereupon his son Misri, who was looking after the same, had scared away the cattle. On that Allah Rakhio and others became annoyed and were chasing Misri. On such information complainant and his nephew went outside running. Complainant was a little behind. When the reached at the lands of Syed Asghar Abbass Shah at about 4.00 p.m. the complainant saw that Allah Rakhio, Gul Bahar, Jalal, Attur, Hazar Khan and Ghazi Khan armed with hatchets and Arbab armed with lathi were following Misri Khan who ran away towards eastern side. Hakim Ali alias Moharram Ali, Allah Bakhsh, Lal Bakhsh and Wali Mohammad asked the said persons as to why they were chasing Misri whereby they abused and told that Misri had scared away their cattle and they will not spare him. The complainant party asked them not to abuse upon which accused Arbab instigated all others to kill the complainant party whereby the said accused persons attacked and assaulted Hakim alias Moharram Ali, Allah Baksh, Lal Baksh and Wali Mohammad while complainant saved himself taking shelter of palm tree and raised cries whereupon P.Ws Mohammad Yakoob, Illahi Bakhsh and others came there, as such accused went away. They saw that Hakim Ali alias Moharram Ali had sustained injury at his head and other parts of body who died at the spot while Allah Bakhsh, Wali Mohammad, Lal Bakhsh and Shakal Khan also sustained injuries on their head and other parts of body, complainant took the injured to the hospital and then reported the matter to police.

3. After registration of FIR police conducted investigation and after completing codal formalities, challan against seven accused was submitted. Accused Arbab and Qazi were let off while accused Attur was shown absconder in the challan against whom proceedings under sections 87/88, Cr.P.C. were initiated by the trial court and he was declared proclaimed offender.

4. A formal charge Ex.02 was framed against the appellants/convicts to which they pleaded not guilty and claimed to be tried vide their pleas Exs.03 to 06.

5. To prove its case, prosecution examined in all ten witnesses namely, complainant Ghulam Muhammad at Ex.07, PW-02 Mohammad Yaqoob at Ex.08, PW-03 injured Shakeel Khan at Ex.09, PW-04 injured Wali Mohammad at Ex.10, PW-05 injured Lal Bakhsh at Ex.11, PW-06 Dr. Hifzur Rehman at Ex.12, PW-07 Sado Khan at Ex.13, PW-08 LPC Turab Ali at Ex.14, PW-SIP Allah Bakhsh at Ex.15, PW-10 Inspector Parvez Ahmed Shaikh, I.O. of the case, at Ex.17 and then side of prosecution was closed vide statement of DPP Ex.18.

6. Statements of accused / appellants were recorded under section 342, Cr.P.C. vide Exs.20 to 23. In their respective statements they have professed innocence and further deposed that they have been implicated due to enmity.

7. After formulating the points for determination, recording evidence of prosecution witnesses and hearing counsel for the parties, trial Court vide impugned judgment convicted and sentenced the appellants, as stated above. Against the said judgment, appellants have preferred instant appeal.

8. I have heard Mr. Muhammad Achar Khan Gabol, learned counsel for appellants/convict(s), Mr. Shafi Mohammad Mahar, learned DPG for the State and complainant Ghulam Mohammad as well as injured Wali Mohammad, who appeared in person however, their counsel Mr.Mohammad Abdul Qayoom Araien, advocate was called absent. I have also scanned the record carefully and anxiously.

9. Mr. Gabol, learned counsel for the appellants/convict(s) submitted that motive, as narrated by the complainant in the FIR has not been proved, inasmuch as; PW Misri Khan who being victim as well the key person on whose intervention the chain of offence commenced, though was examined by the police under section 161, Cr.P.C., was not produced and examined before the trial court and he was given up by the prosecution upon the application of complainant which was duly endorsed by the ADPP hence, per Mr. Gabol, he being the eye-witness was an essential witness, but was given up by the complainant. According to him, if he would have been examined then he might not have deposed against the appellants, therefore, he was given up thus the case of prosecution is purely covered by Article 129(g) of the Qanun-e-Shahadat Order, 1984. He further attacked upon the place of incident, where allegedly incident occurred as per the sketch prepared by the Tapedar of the beat, it was not the land of the complainant party but was land of Syed Asghar Abbass Shah being S.No.906 and S.No.907 as is mentioned in his cross-examination Ex.14 at page 221 where small mango trees were standing hence the version of FIR was not proved.

10. He next submitted that blood-stained Angosho which was recovered from the place of incident and was sealed, was not sent to Chemical Examiner for examination nor was produced in evidence before the trial court, hence the said piece of evidence being material containing the alleged blood of the deceased through which it could have been matched to be the blood of deceased had not been brought on record. Hence the chemical report with regard to the blood-stained earth etc. cannot be believed against the appellants. He further submitted that throughout the proceedings the alleged chemical reports were not produced by the complainant, any of the PW, medico legal officer or even I.O. of the case. He further contended that the said alleged chemical reports were dispatched by the police on 02.12.2005 after a delay of about two months and were issued on 12.12.2005 by the laboratory but no plausible explanation has been furnished by the prosecution for late sending samples to laboratory. He further contended that although the I.O. of the case deposed that the mashirnama was written on his dictation but he showed his ignorance as to who wrote the mashimama on his dictation.

11. Mr. Gabol has further focused upon the evidence of PW/Mashir Mohammad Yaqoob examined at Ex.8 who deposed that he did not know from where accused were arrested by the police and that the Police had not recovered the lathis and hatchets from the accused in his presence and he was at PS when accused were brought at PS and hatchets were recovered from them. He has further contended that there is contradiction in the evidence of the I.O. and mashir Mohammad Yaqoob with regard to recovery of the hatchets as well as lathi from the hedge of the house of accused at their pointation. He further argued that the hatchets were not specified that which hatchet belonged to which of the accused and therefore, such recoveries are doubtful. According to him, in this view of the matter, the evidence with regard to recovery is not reliable.

12. He has also focused upon the evidence of MLO Hafizur Rehman Ex.13 according to whom the alleged injured Wali Mohammad was not examined by him. He has farther pointed out that both the deceased as well as all the three injured had sustained multiple injuries by sharp cutting weapon as well as by hard and blunt substance but it has not been specified as to whose blow hit to whom and on which part of the body, thus in such a situation the accused cannot be held responsible for such particular offence. Mr. Gabol prayed that by allowing the appeal, impugned judgment may be set-aside and the appellants may be acquitted of the charge.

13. Conversely Mr. Shafi Mohammad Mahar, learned DPG appearing for the State supported the impugned judgment. He argued that complainant and witnesses including injured witnesses have deposed in line with each other and all the witnesses are consistent with each other on all material aspects of the case. He next submitted that memo of place of incident, inquest report of two deceased, coupled with memos of the injuries and last-worn clothes of both deceased have made sequel of the chain of crime. He next submitted that there is no conflict between the ocular and medical evidence, besides circumstantial evidence adduced by the prosecution also corroborates the version of prosecution. Mr. Mahar has also pointed out that the contradictions pointed out by the appellants' counsel are minor in nature and have occurred due to passage of time, and the same have not vitiated the veracity of the prosecution evidence. Learned DPG submitted that though complainant, injured PWs and the deceased have relationship but they are natural witnesses, therefore; their testimony due to their relationship cannot be discarded in an incident where two innocent persons had lost their precious lives and many others had sustained severe injuries on their persons.

14. While refuting the argument advanced by the appellant's counsel, the DPG vehemently argued that the accused firstly left their cattle in the orchard of the complainant party, thereby got destroyed the standing crop as well trees and on restraining by Misri, they formed an unlawful assembly duly armed with deadly weapons and by a preplanned and conscious conspiracy, had assaulted upon the complainant party and the injured who being empty handed could not combat with them. The sequence of offence committed by the convict/accused itself speaks truth and no animosity or malice has been shown on the part of prosecution witnesses for falsely implicating them. He further contended that minor contradictions usually take place almost in every criminal case due to passage of time and the accused cannot be acquitted merely on the basis of such minor contradictions in the evidence as the same are not fatal to the prosecution case. According to him, the evidence of prosecution witnesses which otherwise is confidence inspiring and is reliable, cannot be discarded merely due to such minor contradictions. According to him, the argument of the appellant's counsel with regard to the change of the location of place of incident, carries no weight as it is evident from the contents of FIR that when the accused/convicts had followed Misri Khan with the aim to commit his murder or inflict injuries, he started running to get safe shelter and the accused by following him, so also the complainant party reached at the place where quarrel took place which resulted in the commission of alleged offence by the accused. DPG while supporting the impugned judgment argued that there is no illegality or improbability which may require interference in the impugned judgment by this court. Besides, ocular evidence also does not suffer from any material contradiction, discrepancy or inherent infirmity and has been consistent with probabilities, fitting materially with other evidence especially the medical evidence. The FIR was lodged promptly ascribing the facts of the offence committed by the accused, and nomination of the accused in the FIR, rules out the changes, deliberation or consultation on the part of complainant. He further submitted that prosecution has successfully made out its case against the appellants beyond the shadow of any reasonable doubt and the defence has failed to shake the evidence adduced by the prosecution witnesses. The DPG has also pointed out that in the absence of any enmity with the complainant, competence of the prosecution witnesses is not shattered, therefore, the same was rightly believed learned trial court. Moreover, a procedural formality cannot be insisted at the cost of completion of an offence and if an accused is otherwise found connected with the commission of any offence then, mere procedural omission and even allegation of improper conduct of investigation would not help the accused/convicts. In support of his contentions he has placed reliance upon the cases reported as The State/ANF v. Muhammad Arshad (2017 SCMR 283) and The State v. Noor Mohammad alias Thola and 03 others (1991 PCr.LJ 2007) and prayed that appeal in hand merits no consideration therefore, may be dismissed. He has also submitted the citation brought by the complainant Ghulam Mohammad and injured PW Wali Mohammad reported as Dildar Hussain v. Mohammad Afzal alias Chala (PLD 2004 Supreme Court 663) and Javaid Shah v. The State (2007 PCr.LJ 506).

15. From the perusal of the evidence of eye-witnesses namely, complainant Ghulam Mohammad and PWs Mohammad Yaqoob as well as three injured witnesses namely, Shakal Khan, Wali Mohammad and Lal Bux, it seems that all of them are consistent on all material aspects of the case. They all have deposed about the presence of appellants along with absconding accused at the place of occurrence, forming of an unlawful assembly duly armed with deadly weapons i.e. hatchets and lathi, committing murder of Hakim Ali and Muharram Ali, so also inflicting injuries to aforesaid three injured eye-witnesses. All the witnesses are also consistent with each other on the date and time of the alleged incident, so also the manner in which the alleged offence was committed by the accused. They all are also consistent with each other about the motive for the alleged offence, inasmuch as; they all deposed that they were informed by the children that the accused / appellants were chasing Misri Khan as he had restrained cattle of the accused from damaging the freshly planted date palm saplings of the complainant party and had scared away the cattle of the accused. They have also consistently deposed that on such information when they went outside, they found the present accused/appellants along with absconding accused armed with hatchets and lathi and thereafter they committed murder of both the deceased as well as caused injuries to the aforesaid three injured witnesses. The evidence of the eye-witnesses appears to be true, natural and confidence inspiring. Such ocular set of evidence is also corroborated by medical as well as circumstantial evidence.

16. So far as certain discrepancies in the investigation as pointed out by Mr. Gabol are concerned, the same does not appear to be material so as to spoil the confidence inspiring ocular testimony and the same are immaterial and have no weight to discredit the authentic mode of the incident as deposed by the eye-witnesses. Even if there are certain minor discrepancies or some omissions on the part of investigation, keeping in view strong ocular testimony, the same cannot be made basis for discarding the evidence of the eye-witnesses. It is settled principle of law that in absence of the enmity with the complainant and witnesses or the deceased, a procedural formality cannot be insisted at the cost of completion of an offence and if an accused is otherwise found connected with the commission of an offence, then mere procedural omission and even allegation of improper conduct of investigation would not help the accused/convict. In case of the State/ANF v. Mohammad Arshad reported in 2017 SCMR 283, Honourable Supreme Court of Pakistan held as under:-

17. "... We may mention here that even where no proper investigation is conducted, but where the material that comes before the court is sufficient to connect the accused with the commission of a crime, the accused can still be convicted, notwithstanding minor omissions that have no bearing on the outcome of the case. Thus, there exists ample evidence on record to find the respondent guilty and the trial court rightly convicted him."

18. As regards the contradictions in the evidence of the prosecution witnesses, as pointed out by learned counsel for the appellant, suffice it to observe that such/contradictions are minor in nature and the same usually occur in every criminal case due to passage of time, however such types of minor contradictions cannot be made basis for acquittal of the accused, if otherwise prosecution has succeeded in producing confidence inspiring ocular testimony. In the case reported as Zulfiqar Ahmed v. State (2011 SCMR 492) Honourable Supreme Court held that minor contradictions do creep in with the passage of time and can be ignored. In another case reported as Mohammad Ilyas v. State (2011 SCMR 460) apex Court observed that contradictions which are not grave in nature can be ignored safely as minor contradictions creep in with passage of time and merely on the basis of such contradictions, statement of a prosecution witness cannot be discarded if corroborated by other incriminating material. In the instant case there is strong ocular account of the prosecution case corroborated by medical as well as circumstantial pieces of evidence. Even otherwise, the trial Court has exhaustively dealt with such minor contradictions in the impugned judgment and has given sound and cogent justification for ignoring such minor contradictions. It would be advantageous to reproduce hereunder the relevant portion from the impugned judgment:

19. "23. Contradictions or inconsistencies pointed out by both the learned defense counsel are found to have caused no severe damage to the otherwise so coherent and consistent prosecution case. The point raised by defense that the complainant was examined on 27.01.2006 i.e. after 14 months of the incident deposed that the incident took place about 2 years back, the matter being of clear record established by promptly lodged FIR, the post mortem and medical reports leaves no doubt as to the fact that the offence was committed on 02.10.2005 and (PW-1) deposing after 14 months, of the incident that the incident took place about 2 years back is found to have no serious bearing. Same is the position with regard to the point raised by defense that in FIR complainant had stated that they own the land while the complainant (PW 1) deposed that they are Haries. Same is found to be immaterial. Same is true with regard to the position that complainant (PW 10) deposed to have received information from children at about 4.00 pm while his actual case has been that it was 4.00 pm when they reached at the place of incident. Non-mentioning the name of absconding accused Attur in evidence by complainant (PW 1) though he had implicated him in the FIR by name is also found to have no serious bearing, specially, in view the fact that the said accused Attur being absconder was not present in the court. The point raised by defense that complainant (PW 1) did not mention in the FIR as to who caused the injuries to which deceased or injured while he (PW 1) deposed in evidence that accused Allah Rakhio caused hatchet blow to Hakim Ali while accused Hazar Khan caused such blow to Allah Bakhsh, accused Gul Bahar caused such blow to Wa1i Muhammad and other accused also caused such lathi and hatchet blows. In this regard it is found that FIR can ever be a detailed description of the facts. Further the last line "other accused also caused lathi and hatchets blows express it all i.e. that it was like a free fight in which the present accused indiscriminately caused hatchets and lathi blow to the deceased and injured. Same is true for the fact that complainant (PW 10) in cross-examination while answer-ing a question replied that he took the injured to P.P. Sathio Wah which fact was not mentioned in the FIR. The same cannot be termed as an improvement and is found by Court to be merely description of the facts much in detail than in the FIR. All facts which are brought on record especially by a lengthy cross- examination of many pages can never be contained in a FIR, e.g. it has also been raised as a point by defense that specification of cattles i.e. buffalo and cows by the complainant (PW-1) in the evidence is an improvement while in FIR it was only stated to be cattles. The same cannot be termed as improvement but merely details of the facts. No serious dent is found to have caused by the position that PW 2 Muhammad Yakoob deposed that he was standing near his lands and reached at the place of incident on the cries of complainant while it is reflected in his 161, Cr.P.C. statement that he was at his house. Same immaterial is found the point raised in evidence that injured Shakal Khan (PW 3) narrating two injuries sustained by him deposed that he had received hatchet injuries on his head and shoulder whereas his medical certificate (Exh. 13-A) shows that one of the injury sustained by him was by hard and blunt substance. It is obvious that the injury sustained by the sharp side of hatchet would be opined to have caused by sharp cutting weapon and where the hatchet blows caused by the side specially the back side of hatchet could only be opined to have caused by hard and blunt substance. Further in the narrated facts of the case which reflects a free fight sort of situation, one does not only defend his body but at the same he keeps looking around seeing his near relatives sustaining fatal injury and in such situation, specific narration is not reasonable to expect. Such specification could be got only if the incident is filmed and that too on slow motion replay and even that requires repeated rewinding. The contradictions pointed by defense as to the names of the children who informed the complainant party at their house i.e. such children were named to be Roshan and Saddar by PW 3 Shakal Khan but complainant (PW 1) deposed said children to be Mir and Jurio is also found to, have no much substance. In this regard it is found that here could be more than two children who came running and given the information and the defense has never got verified the facts from the said two witnesses (PW 1 and PW 3) as to if that they both were in the same room and if they were informed by the same children. No touch substance is found to the point raised by defense that the PW 3 Shakal Khan deposed than all accused caused injuries to Hakim Ali while as per the post-mortem report only three injuries were sustained by deceased Hakim Ali whereas the nominated accused were seven in number. The position is clarified simply by reading the next sentence that PW 3 deposed, i.e. "All the accused gave injuries to Hakim Ali so also Allah Bakhsh". The point raised that said PW Shakal Khan (PW .3) admitted in cross-examination that his statement was not recorded by the police and that he is giving the statement for the first time, it is found obvious that signature of LTI of the witnesses are not obtained on 161, Cr.P.C. statements, hence in the given circumstances when the said witnesses himself was seriously injured while two of his close relatives were murdered, it could not be expected that he being a layman would be so well versed that when the police asked questions during investigation or when his statement was recorded. The defense line that as per opinion of the Medical Officer (PW 6) the time between death and postmortem of deceased Hakim Ali was opined to be 1-1/2 to 2 hours while as per (PW 6) deposition, the post mortem started at 7.40 p.m. and it was further opined that Hakim Ali died within 7 to 10 minutes of sustaining the injuries which is to mean that he died at 5.40 pm whereas the ocular evidence suggests time of death to be around 4.00 a.m., or that with regard to time between death and postmortem of deceased Allah Bakhsh which was opined to have died one hour and 20 minutes before the postmortem whereas he actually died as per the other evidence at about 7.40 pm. In this regard it is found that a stopwatch, time calculation cannot be expected from the medical report. There is no difference in the time of death as per ocular evidence and the time opined by medical officer on the postmortem. The discrepancy as to the death opined by the medical and ocular evidence is of about one hour. It would not be reasonable to expect the eye-witnesses sustaining injuries and being a chaos like situation to be noting the time of every event and that too with accuracy."

20. There is no cavil to the proposition laid down in the judgments relied upon by learned counsel for the appellants, however, the facts and circumstances of such cited cases and that of the present case are different from each other, thus the said judgments are distinguishable in view of well settled principle of law that each criminal case is to be decreed on its own merits.

21. Upshot of above discussion is that the prosecution has succeeded in proving its case against the appellants beyond reasonable doubt and the impugned judgment does not suffer from any infirmity or material illegality, thus the same does not require any interference by this Court Consequently, instant appeal is dismissed and the impugned judgment dated 03.09.2013, passed by learned Sessions Judge, Khairpur in Sessions Case No.320 of 2005 (Re: The State v. Hazar Khan and others) being outcome of FIR No.144 of 2005, registered at Police Station A-Section Khairpur, under sections 302, 324, 337A(i), 337A(ii), 337-L(2), 504, 148, 149, P.P.C. is hereby maintained.

22. JK/H-22/Sindh Appeal dismissed.