MUHAMMAD KARIM KHAN AGHA, J.----Through this Criminal Appeal appellant Ghulam Murtaza Meerani has assailed judgment dated 29.11.2018, passed by learned Vth Additional Sessions Judge, Larkana, in Sessions Case No.657 of 2011, re: State v. Ghulam Murtaza Meerani, arising out of Crime No.131 of 2011 of Police Station Hyderi, District Larkana, registered under Section 302, P.P.C., whereby appellant has been convicted for offence under Section 302(b), P.P.C. and sentenced to death, subject to confirmation by this court and to pay Rs.400,000/- to the legal heirs of deceased Sadaqat as compensation within the meaning of Section 544-A, Cr.P.C, in case of default in payment thereof he shall undergo S.I. for six months more.
2. The brief facts of the prosecution case as unfolded in the FIR are that: "It is to complain: I along with my family reside at Gajanpur Muhalla, Jatoi Street. There is our otak near our house, on the other side of the street. I along with my son Sadakat Ali aged about 18/19 years, my brother Liaquat Ali and my brother in law Hamid Ali son of Ghulam Hyder Jatoi, resident of Sachal Colony Larkana, were sitting in the room of my otak; my son Sadakat Ali was talking on mobile phone in courtyard; the outer door of the otak was lying open; at about 11 o'clock, one person entered into otak, whom I and above-named witnesses saw clearly and identified to be Ghulam Murtaza son of Ghulam Ali Mirani, originally resident of Bhedha, at present Ayoob Colony, Larkana. The accused on entering in otak asked my son Sadakat Ali that "Yesterday, you had insulted me on the issue of money, so I will not spare you today; I will kill you to death!" By saying so, the accused took out knife from his fold and caused knife blow to my son Sadakat Ali with intention to commit his murder, who raised crises and fell down on the ground. On his cries, we came out from the room of otak and gave 'hakal' to the accused and on seeing us the accused along with knife ran away in the street towards northern direction. Being empty-handed and out of fear, we did not chase him. Thereafter, I and above-mentioned witnesses saw my son Sadakat Ali having knife injuries on his face, backside of neck, front of neck, left arm, and on other different parts of body and was bleeding. Thereafter, I with the help of above-mentioned witnesses brought my injured son at CMCH Larkana on private vehicle for quick treatment. My son succumbed to injuries and died in front of us just on reaching the hospital. Thereafter, I left above-mentioned witnesses over dead body and have now appeared before you, complaining that the above-named accused has killed my son Sadakat Ali by causing him knife blows over the issue of money. I am complainant, may investigation be made."
3. During investigation of above case, accused Ghulam Murtaza Meerani was arrested and sent up to stand trial. Charge was framed against accused/appellant Ghulam Murtaza Meerani, to which he pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution examined in all 8 witnesses, who exhibited numerous documents and other items and thereafter prosecution side was closed. Thereafter, statement of accused was recorded under section 342, Cr.P.C. in which he denied the allegations and claimed his false implication due to suspicion. However, the accused did not examine himself on oath but did call 2 DW's in support of his defence case who were alibi witnesses.
5. On conclusion of the trial, learned trial court after hearing learned counsel for the parties and appraisal of prosecution evidence brought on record, convicted and sentenced the appellant/accused as mentioned earlier in this judgment vide Judgment dated 22.4.2013 which was assailed by the appellant before this Court in Cr. Jail Appeal No.D-30 of 2013 in which vide order dated 08.05.2018 the matter was remanded back to the trial court for recording statement of accused/appellant under Section 342, Cr.P.C., afresh whilst ensuring that the accused/appellant was confronted with each and every material piece of evidence to enable him to furnish his explanation thereon and then pass fresh judgment within a period of two months of the judgment.
6. After making compliance with the aforesaid remanded case the trial court after appreciation of the evidence on record again convicted and sentenced the appellant as mentioned earlier in this judgment vide impugned judgment dated 29.11.2018 giving rise to this instant appeal against conviction.
7. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the judgment dated 29.11.2018 passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.
8. Learned counsel for the appellant has contended that none of the PW eye witnesses was present at the scene of the incident and that it was an unseen incident; that the conduct of the alleged eye witnesses does not accord with natural human behaviour as they failed to save the deceased from the appellant who was their relative despite the stabbing incident taking place in their presence which is a further indication that they were not present at the time of the incident and even the mobile phone of the deceased was not recovered which the deceased was allegedly talking on at the time of the incident; that the eye witnesses are all related and as such cannot be safely relied upon; that there were no independent mashirs; that the accused has been falsely implicated in this case and for any of the above reasons the appellant should be acquitted of the charge by extending him the benefit of the doubt. In support of his contentions he has placed reliance on Aimal Khan v. The State (2012 MLD 441) and Muhammad Akram v. The State (2009 S CMR 230).
9. On the other hand learned Addl. Prosecutor General who was also representing the interests of the complainant fully supported the impugned judgment and contended that the three eye witnesses to the incident were reliable and confidence inspiring and had fully implicated the appellant in the. murder of the deceased; that the eye witnesses were corroborated by the medical evidence; that at the time of his arrest on the day of the incident the churri (murder weapon) was recovered from the appellant; that the blood stained earth found at the wardat was human blood and as such the prosecution has proved its case beyond a reasonable doubt against the appellant and as such his appeal should be dismissed and his conviction and sentence maintained. In particular he stressed that due to the brutality of the attack on the deceased by the appellant the death sentence was fully attracted in this case. In support of his contentions he has placed reliance on Farooq Khan v. The State (2008 SCMR 917), Talib Hussain v. The State (1995 SCMR 1776) and Khadim Hussain v. The State (PLD 2010 Supreme Court 669).
10. We have heard the arguments of the learned counsel for the parties, gone through the entire evidence which has been read out by the appellant's counsel, the impugned judgment with their able assistance and have considered the relevant law including that cited at the bar.
11. Based on our reassessm ent of the evidence of the PW's, especially the PW eye-witnesses, PW MLO, post mortem and other medical reports, PW Tapedar and recovery of blood stained earth at the scene which lead to a positive chemical test we find that the prosecution has proved beyond a reasonable doubt that Sadaqat Ali (the deceased) was murdered by churri blows at about 11.30 am on 22.10.2011 at Otak situated at Gjanpur Mohlla Jatoi Street Larkana.
12. The only question left before us therefore is who made the churri blows on the deceased which lead to his death.
13. After our reassessm ent of the evidence we find that the prosecution has proved beyond a reasonable doubt the charge against the appellant for which he was convicted for the following reasons;
(a) That the FIR was lodged with promptitude within one and a half hours of the murder and thus there was no delay in the lodging of the FIR which would give the opportunity to the complainant or the police to cook up a false case against the appellant. Even otherwise no enmity has come on record between the appellant and the complainant party which would motivate them to lodge a false case against him. The appellant is named in the FIR with a specific role.
(b) In our view the prosecution's case rests on the eye witnesses to the murder whose evidence we shall consider in detail below;
(i) Eye-witness PW 3 Moula Bux. He is the complainant in the case and the father of the deceased.
According to his evidence on 22.10.2011 he, the deceased, his brother Liaqat Ali and his brother in law Hamid Ali had gone to his Otak and were all sitting inside except the deceased who was talking on his mobile phone in the court yard. At about 11.30 am he saw the appellant enter his Otak and heard him accuse the deceased of insulting him over a money matter and threatening to kill him.
On saying this he saw the appellant take out a churn and cause blows to the deceased who fell down whilst crying out. He and the other PW's gave hakkals to the appellant who then ran away with the churri. He states in his evidence that they did not chase the appellant as they were empty handed and instead took his injured son to hospital where he died and then lodged the FIR with the police within one and a half hours of the incident. He knew the accused, it was a day light incident and he was only 15-16 feet away when the appellant gave churri blows to the deceased so there is no case of mistaken identity and no need to hold an identification parade. The appellant was also named and given the same specific role in the FIR lodged promptly after the incident. The fact that he could see the incident clearly was corroborated by the evidence of PW 2 Hussain Bux who was the tapedar along with his sketch which also corroborated the fact that the complainant and other eye witness PW's were between 10 and 16 feet from the appellant when he attacked the deceased with the Churri. Since it was a day light incident as mentioned earlier and the complainant and other eye witnesses knew the appellant they would have had no difficulty in identifying him especially as the attack went on for a few moments.
Admittedly the eye-witness was related to the deceased however it is well settled by now that evidence of related witnesses cannot be discarded unless there is some ill will or enmity between the eye witnesses and the accused which there was not in this case. In this respect reliance is placed on ljaz Ahmed v. The State (2009 SCMR 99) and Nasir Lqbal alias Nasra and another v.
The State (2016 SCMR 2152)
This eye-witness was a natural witness and not a chance witness as he had come with his son to the Otak with his other relatives who all lived close by except one who had come to visit his sister.
As mentioned earlier he lodged his FIR with promptitude and named the other eye witnesses in the FIR along with the accused with a specific role. He had no enmity with the appellant and had no reason to falsely implicate him. His evidence was not dented despite lengthy cross-examination.
He did not intervene in the attack because he was unarmed and he did not give chase as his priority was to take his son to the hospital. The fact that his son's mobile was not recovered is not relevant based on the particular facts and circumstances of the case. There have not been any significant improvements in his evidence from his FIR so as to render it unreliable. We find his evidence to be reliable, trustworthy and confidence inspiring and we can convict on this evidence alone. In this respect reliance is placed on Muhammad Ehsan v. The State (2006 SCMR 1857). As also found in Farooq Khan (Supra) what is of significance is the quality of the evidence and not its quantity and in this case we find the evidence of this eye witness to be of good quality.
(ii) Eye-witness PW 4 Liaquat Ali corroborates eye-witness PW 3 Moula Bux in all material respects. He is named in the FIR as an eye witness shortly after the incident and gave his Section 161, Cr.P.C. eye-witness statement on the day of the incident which left no room for concoction and there has not been any significant improvements in his evidence so as to render it doubtful and the same considerations apply to him as to PW 3 Moula Bux.
Eye-witness PW 5 Hamid Ali corroborates eye-witness PW 3 Moula Bux and eye-witness PW 4 Liaquat Ali in all material respects. He is named in the FIR as an eye witness shortly after the incident and gave his section 161, Cr.P.C., eye-witness statement on day of the incident which left no room for concoction and the same considerations apply to him as to eye-witness PW 3 Moula Bux and eye witness PW 4 Liaquat Ali Thus, based on our believing the evidence of the 3 eye-witnesses what other supportive/corroborative material is their against the appellant?
(c) That the evidence of the 3 eye-witnesses is corroborated by PW 7 Asif Ali who lodged the. FIR on behalf of the complainant and in particular the complainant reaching the PS at 1300 hours to lodge the FIR which ties in with the evidence of the three eye witness PWs discussed above.
(d) That the medical evidence and post mortem report of PW 1 Dr. Mohammed Nawaz Ali fully supports the eye witness/prosecution evidence as he confirms that the deceased was brought dead to the hospital and had received 17 different wounds mainly caused by a sharp cutting substance (e.g a churri) and some by biting which lead to his death as deposed by the eye witnesses. The post mortem was carried out with promptitude which would rule out the cooking up of any false case.
(e) That the appellant was arrested on the same day within 4 to 5 hours of the incident by PW 7 SIP Asif Ali based on spy information en route to his native village and on his arrest the blood stained churri was recovered from him. That this PW had no enmity with the appellant and had no reason to falsely implicate the appellant in the case. That he is corroborated in nearly all steps of his investigation, for example, inspecting the dead body at the hospital, inspecting the wardat and arresting the appellant from whom the blood stained churri was recovered by PW 8 Bashir Ahmed who was mashir of all the mashirnama's in respect of the above aspects of the investigation. Once again this PW had no enmity with the appellant and had no reason to falsely implicate the appellant in the case.
(f) That the blood stained earth recovered at the wardat and the blood stained churri were both sent for chemical examination which report found the blood recovered at the scene and the dried blood on the churri to be human blood.
(g) That all the PW's are consistent in their evidence and even if there are some contradictions in their evidence we consider these contradictions as minor in nature and not material and certainly not of such materiality so as to effect the prosecution case and the conviction of the appellant. In this respect reliance is placed on Zakir Khan v. State (1995 SCMR 1793) and Khadim Hussian (Supra). Their evidence provides a believable corroborated broken chain of events from the meeting at the Otak, murder of the deceased at the Otak by the appellant through churri blows to the arrest and recovery of the blood stained churri from the appellant.
(h) That the police PW's had no enmity or ill will towards the appellant and had no reason to falsely implicate him in this case by for example making up his arrest or foisting the churri on the I appellant and in such circumstances it has been held that the evidence of the police PW's can be fully relied upon. In this respect reliance is placed on Mustaq Ahmed v. The State (2020 SCMR 474).
(i) That it does not appeal to reason, logic or commonsense that a father would let the murderer of his son go scot free by substituting him with an innocent person (the appellant). In this respect reliance is placed on Allah Ditta v. State (PLD 2002 SC 52).
(j) Nearly all the relevant police entries have been exhibited. (k) Undoubtedly it is for the prosecution to prove its case against the accused beyond a reasonable doubt but we have also considered the defence case to see if it at all can caste doubt on or dent the prosecution case. The defence case as per, the two DW's is essentially one of alibi.
During the cross examination of the eye witnesses the appellant did not suggest that he was elsewhere with any particular persons and nor does he raise the defence of alibi. The DW's are both closely related to the accused. Neither of them came forward to record their statements during the investigation stage despite knowing well that the appellant was in jail and faced with this murder case which carried capital punishment. Thus, for the reasons mentioned above we disbelieve the DW's and the defence case as an afterthought. Thus, in the face of three reliable, trust worthy and confidence inspiring eye witnesses the defence case (which we disbelieve) has not at all dented the prosecution case.
14. Thus, based on the above discussion especially in the face of reliable, trustworthy and confidence inspiring eye witness evidence and other corroborative/supportive evidence mentioned above we have no doubt that the prosecution has proved its case against the appellant beyond a reasonable doubt for the offence for which he has been convicted and hereby maintain his conviction.
15. With regard to sentencing we find that the prosecution has asserted a motive that the appellant murdered the deceased on account of a financial dispute which had insulted him (the appellant) which the prosecution has proved. Even otherwise, we find that the attack on the deceased which lead to his death was particularly brutal, barbaric and frenzied causing 14 separate churn wounds on most parts of the body and also three bite marks and as such the appellant deserves no leniency in terms of sentencing. In this respect the evidence of MLO PW 1 Dr. Mohammed Nawaz Ali is reproduced below for ease of reference;
01. Incised wound measuring 3 cm x 1 cm x muscle deep on left cheek.
02. Incised wound at wound lip on left side of mouth measuring 3 cm x 1 cm x muscle deep.
03. Incised wound measuring 3 cm x 1-1/2 x muscle deep at lower side of neck anteriorly.
04. Incised wound measuring 4 cm 1-1/2 cm x body cavity deep below right. nipple.
05. Incised wound measuring 3 cm x 1-1/2 in x body cavity deep at lateral side of right chest at middle.
06. Incised wound measuring 3 cm x 1-1/2 cm x body cavity deep at lower part of right chest laterally.
07. Incised wound measuring 4 cm x 1-1/2 x body cavity deep at right side of abdomen.
08. Incised wound at lateral side of right buttock measuring 5 cm x 1-1/2 in x middle deep.
09. Human bite bruise measuring 4 cm x 4 cm a right shoulder.
10. Human bite bruise measuring 4 cm x 4 cm at right forearm below right elbow joint.
11. Like human bite bruise with black coloration on below right wrist joint on dorseni of right wound.
12. Incised wound at back of neck on left side measuring 5 cm x 2 cm deep up to right side of neck.
13. Incised wound measuring 4 cm x 1-1/2 x body cavity deep at above left nipple.
14. Incised wound at below left nipple measuring 4 cm x 1-1/2 4 x body cavity deep.
15. Incised wound at left side of umbilicus measuring 3 cm x 1-1/2 cm x abdomen cavity deep.
16. Incised wound at left lumber region of abdomen anteriorly measuring 4 cm x 1-1/2 cm x abdomen cavity deep.
17. Incised wound at back side of left fore arm measuring 7 cm x 3 cm x muscle deep.
16. Further reliance on particularly brutal crimes justifying the death sentence is placed on Tariq Iqbal v. State (2017 SCMR 596) which at P.596 held as under "3. Leave to appeal had been granted in this case only to consider as to whether the appellant deserved the sentence of death on the charge of murder or not and the stage of granting leave to appeal the merits of the appellant's case had not been pressed before this Court. This shows that the question of the appellant's guilt as well as all the factual allegations leveled by the prosecution against the appellant now conclusively stand settled and accepted. The appellant had trespassed into the complainant's house, had killed the complainant's wife and had robbed different articles available in the complainant's house which articles had later on been recovered from the appellant's custody. The appellant had made an extra-judicial confession before two witnesses and had also made a judicial confession before a Magistrate. The murder in issue had been committed by the appellant in furtherance of a robbery and a young lady in her prime had been butchered by the appellant inside her house by giving as many as 10 churri blows on different parts of her body. Such conduct displayed by the appellant clearly shows that the appellant is a cruel desperate person who deserves no sympathy in the matter of his sentence. This appeal is, therefore, dismissed. "(bold added)
17. Under these circumstances due to the particular brutality and callousness of the murder we hereby uphold the death sentence of the appellant. Thus, the appeal is dismissed, the impugned judgment is upheld along with its convictions and sentences and the confirmation reference is answered in the affirmative.
18. The appeal stands disposed of in the above terms.