Mukhtiar Chandio (Appellant) VS The State (Respondent)

6B

IN T FS

{ Criminat Jail Appeal No.S- 109 of 20'19' Appellant: Mukhtiar C1'rand.io through Mr.Razi Khan R. Chandio, Aclvocate.

Respondent: The state through Mr.Ali Anwar Kandhro, Addl: P.G.

Complainant: Zahid Ali in Person

Date of hearing: 11.01 .2021.,

Date of judgment: 15.01 .2021.

IUD GM ENT

Mohammad Kari{n Kha+ Agha i[:- Through this criminal appeal appellant dated 25,10.20L9 passed by Mukhtiar chandio has assailed impugned judgrnent 1st Additional sessions Judge/MCTC, Kamber in sessions Case No.SL of Iearned

T

zr,:lgre: state v. Mukhtiar Chandio & others arising out of crime No'85 of 20LB of p.s warah registered for an offence under sections 302, 1L4, L48 and 149

PPC

sentenced to suffer life whereby the appellant has been convictecl and the tune of Rs.500,000/: to the imprisonment as Tazir and pay compensation to family/LRs of the deceased, in case of default in payment thereof he bereaved of section 382(b) cr'P'c has also shall suffer s.I for six months more. The benefit been extended to the appeltant/ accused' 2 The prosecution case as Per FIR is tha| , There was an ongoing old matrimonial dispute between us and. Muhammad Hassan and others' Due to that' they used' to be annoyed with us. Today, I, my father Rabnawaz S/o Wali Muhammarl age aro.,*d 50/55 years T1 uncles "eua.l each Imanruddin (2) Gaffar both 3/O Wali + Wali Muhammad Muhammad Uy caste'ihandio R/O village Chandio .,"ui village Kaman Junejo were waiting for for conveyance at brid,ge"of sim shaakh to go to warrah city work.Attimego'clock,fivePersonscameontwo Muhammad as motorcycles whom we saw and identified Hassan s/ o shah Bakhsh chanclio with cudgel (lathi) in hand (2)HassainS/oBakhshalChandio(3)I-IamidS/o Muhammacl ail Ctranclio (A) Nadrr S/O Abdullah Chanclio R/o village wandar Khan Taluka warrah (5) Mukhtiar s/o

E4

? 6t at prese"l Court Aaiam Khan by caste Chandio R/O "11t They took motorcycle' - wrrr.rr;11..., .u** and stopped (their) their folds and point straight at us and asked us pistols:from drie to fear' Muhammad to renrain siient. We ,e*uined silent Hessianinstigateclotherssaying.KitlRubnawaztodeath.He is not givil; us faisla lurUitrutio.)." on his instigation,

Husseinshotfireofpistolonmyfatherwithintentionto commitmurderwhichhithiminbelly.uuliashotafire (the appellant) from pistol which hit him in chest, Mukhtiar shot fire oi fistor which hit him in belly, and Nadir shot fire fell down raising a cry' of pistol which hit him in hand. He escaped towards north on their Seeing him fallen, all accused rnotorcycles.Wedidnotclrasethemoutoffearandneither we saw that our father could read,their motorcycle numbers. hadonefirearminjuryonleftsideofnavelescapedfrom backtlrroughanclthrough,onefirel'*injuryonleftsideof chest and one firearrn iiFrry on left hand near fingers, one hanct and he was bleeding.

firearm inir-rry o* forear* oi left Hewasunct)nscious.WetookhimtoTalkHospitaiWarrah forquicktreatment.onbeingreferred,wetookhimtoCMC HospitalLarkarrawherehesuccumbedattime1Il"o,clock War rah' Leaving noon. we took his body to Talk Hospitalcorpse, now present of the above witnesses on tr,u security beforeYou,Iamcomplainingttrattheaboveaccused,with pistols, making ruckus' on common intention, arrivea *,iitrr oldmatrimoniali,,,.,*.onin.stigationof'Muhammad Hassian,withintentionto.o**itmurder,shooting Rubnawaz to death' I ) straight fires, have tiitea my father may be held'" am the .o*piuinant' investigation

3.Duringinvestigation,appellantMukhtiarwasarrestedandwassentupto as absconders' in which rest of accused were shown stand trail under charge sheet not guitry and Charge was framed against the accusecl to which he pleaded

claimed trial.

and its the prosecution examined 8 prosecution witnesses 4. To prove case items and thereafter the side of the doc*ments and other exhibited numerous accused was recorde du/s342 Cr'Pc of the prosecution was closed. The statement The appellant denied all the allegations and clairned false implication' wherein he his defense case himself on oath and calred one DW in support of also examined at the one of alibi as accorcling to him he was some where else r which in effect was time of the incident'

Sessions Judge/MCTC, Kamber after hearing the 5. Learned ],,t Additional on record' and assessment of evid'ence available rearned counser for the parties sentenced the vide the impugned judgment dated 25.10.2019, convicted and i

'lo by the appellant against hence this appear has been filed appellant as stated above, his convictions'

before the trial court find The facts of the case as welr as evi,cence produced i 6. passed by the trial court mention in the ju,cgment dated 25.10.2019 an elaborate may not be reproduced here so as to avoid duplication and, therefore, the same

and unnecessary rePetition'

of the Pw eye counsel for apperlant has contencred that none T. Learned i*cident and that they are all related at the scene of the witnesses was present was not no reria.ce can be placed; that the appellant witnesses upon whom incident as he was working with the town counsel; that present at the time of the the pistol was does not support the ocular evidence; that the medical evidence should be and for arry of the above reasons the appellant foisted on the accuserl acquittedoftlrechargebyextendinghimthebenefitofthecloubt.

prosecutor Generar and the complainant g. on the other hand learned Addr. contended that the eye impugned judgment and have ful,y supported the inspiring and fully implicate trustrvorthy and confid.ence \ witnesses are all reriable, supports the ocular in the murder, ttrat the medical evidence the appellant and both the weapon wa' recovered- from the appellarrt evidence; that the murder has FsL reports are positive a.d as such the prosecution chemical reports and douht against the appellant and the appeal a reasonable provecr its case beyond should be dismissed'

gone counsel for the parties, g. I have heard the arguments of the iearned the which has been read out by the appellant' through the entire evidence the relevant with their abre assistance and have considered impugned judgment Iaw.

the eviclence I find that the prosecution has

10.After my feassessment of F the charges against the appellant for the proved beyond a reasonabre douht following reasons;

(a)TheFlRinrespectoftheincidentwasfiledYitinhoursofthe inciclentand'suchp'omptfiling?ftheFlRrulesoutthe .oniotting a false case against the possibility of the c.omplainant third Pa*y' Even appellani with the police or any oihtt had no enmity with the appellant otherwise the complainant

4 -tl and had no leason to falsely implicate him in a case. A.y slight delay which there may have been in lodging the FIR has been accounted for by the prosecution taking the body to a hospital and then yet another hospital where the deceased expired.

* (b) In my view the foundation of the prosecution's case rests on the eye witnesses to the murder whose evidence I shall consider in detail below.

,f

(i)Eye witness Pw L zahid AIi. He is the complainant in the case. According to him the incident took place on 07.11.201g at about 9am when he was with his father Rabnawaz and two uncles Imanuddin Chandi and Abdul Ghaffar both of whom are also eye witnesses. According to his evidence 5 persons came on two motor bikes and alighted and each made direct fire at his father Rabnawaz including Muhammed Hassan and the appellant Mukhtiar with pistols and the appellant's shot hit his father in the abdomen. It rvas a day light incident and pW 1 Zahid Ali knew the appellant as prior to this incident a matrimonial dispute had arisen between them and Muhammed Hasan who was annoyed with them. Ivlukhtiar is also named in the FIR with the specific role of shooting his father in the belly with a pistol which was registered a few hours after the incident so there was no time for the complainant to cook up any false storv or not correctlv identify the appellant and thus no I. identification parade was required. Hassan and his friends also had a motive to kill Rabnawaz due to the matrimonial dispute. In this respect reliance is placed on Ghazanfar Ati v The State (2012 SCMR 215) which in relevant part at Para 13 at p.zz4reads as under;

"Euen otherupise the holding of identification parade is not mandatory and it is merely a coffoboratiue piece of eaidence. lf the staterrtent of a witness qua the identity of nn accused eaen in Court inspires confidence, if he is consisterft on all material particulars and there is notlting in eaidence to suggest that he is deposing falsely, the absence of Itolding of identification parade ruould not be fatot to the prosecutian. In Harbaian Sindh a State of lammu and Kashmir ((L975) 4 Supreme Court Cases 48q, the Court upheld tlrc conaiction wlrcre na identification parade had been lrcld nnd obserued thnt the failure to hold identification parade ruould not be. fatnl in cnses ruhere enough corroboratiue nnd corrcl'usiae e'uidence TUas auailable. A similnr uieru ruas tnken in lafumath Sinsh a . State of U.P. ((1.970) 3 Suprerue Court Cases 515). (bold added) .A.dmittedli, 11t* eye witness l+'as related to the deceased however it is well settled hy now that. evidence of related witnesses cannot be discarded unless there is some ilI wili or enmity between the eye witnesses and the accused which there was not in this case. In fact

1L

-e-

was a This was the position in this case. Ii; l#q.a "y" Yitness his FrR with the reverse .n*^.e witne;r ancl not-u natural witness

n:il,.f:*"#lTil:i#ih,i:1':1.;1lx':='l#',I'*"il"il? * in terms of his TrrH',;*I"H;i!1:;-;li1H#m:#;H';""1H'i role in the *r',* betieve "'iau"tt or fi"-ye-'witnJ;;;tiu1q' "l trtt up'palii''u'ti;ffi;PPe[attt's correct ia*''iiiitation ;J reliable,;;, *;rthy and confidence on crime. I find his eviden:e; t**:t^reliance is placed q.- -r*L. rn

inspiring ;;;"ii",r.

Muharn*"i*il'"""'trt*iiui"1zooeSCMR1857)' pw Lzahid Ali witness pw z Abdul Ghaffar corroborates FIR shortly after the Eye $) ;; t, ,,urr.ud-i"-rr"'" on the same in alr material respects. cr'Pc *i"'tess statement hinr as to incident and gave s his 1or "y* consid.erations *pply to and the same day as ,r.,*'ir,Irdent rw r Zahid Ali' HAr j, Zahid Ali il;if$ cr'Pc #,,"HxTt##": ir :i,"#a tris s'r61 5" t' g;}

H: #;}T

FIR shoruv x,u, tt u ir-,.iaunt and gave and the same named in the U"i "t-** i#laent eye witness eye witness statemg^, "'";;;*''- tl'tt * us to iZ"ftia Ali and consid,erations upply '# fW Z Abdut Ghaffar'

the evidence of the 3 eye wit""Yt yhat my believing appellant?

Thus, based on il;;i-i r, *-t "" against the

Y

other supportirruT.o*ouorutll*

:.1,nfl JJ",xJT"T-*ixlJJiTi:i"-':::.:15:"f i:ffi;l'Iiil:f' evidenc*i,.,t#,i,.1',,i1if#t"l#d:t"rilffi-t:'li?1^fi which u"o'diil-g to th,: "]l-1fl:i on( *Jl:,"'? the fatal iliffi;

shots' rhere is also no was case appellant which " nt. Ptol::i:t?t shot fired Uy"*tE do not by a 3r 5 shots-I il,:T#if, J#;"fl "T:,T#"$:[';'1,::f]'"1ffiti;*;-'h:',*",ud'ghl *"rii' whether the deceur*a facts and contradiction'or*, ;;;; tn-'o"'tit"1u' this ,o'u" particul";i;^;;'on1

iiJ' trru* oral evidence find -""- 'uttria of the case ll{u "1rr"]r*i* circurnstances preference over medical evidence' will take

i;:,lf ;ifi T+fl #:L!'i+l#?:{il:,".1:tl'J',}'}1f:":-":i pistoi'*rouered frorn the $Iff ;h; the ;; positive FSL report "";

according " arrest was unlicensed' appellant "* f''iJ blood report in respect of human , chemical

(e)That there was a positive iound at the scene'

so as not of t"t"":::;irl-t.

oI such materiality sorne contradictions and H;tlri 'i- *"lriar gfl*r*uir..ty ."ot ""a certainly i* tt'it minor ir, ,rutore "* ""vivrn*n from i$i:J.:",1:;rt'.".#d*1W*l$;1.#-ffi **ur*"" rrrain of events :Hffi .orr";:;;i evidence provid*, u u*lil.r-uut. 2

of the deceasecl to the arrest of the appellant' the shooting to the death

consiclered the defense G)UndoubtedlyitisfortheProsecutiontoproveitscaseagainstthe ,*uror*c aorrut but I have urro It is accused u*yoni u on or dent the prosecution case' caste doubt case to see if it at arl can and { case by eye witnesses that this is u .o*.o.ted his claimed by the apperlant" or the incident however ai admitted by that he was at wtit on the dav would wirl o, Lrr*ity *itt, the eyewitnesses which counser he had no il1 to be at work impri.ating ^"3, them ir,,this .ur". He claims lead to them falsery story i, believable of going around in his tractor yet in our view his irno corroborates this states urp".iuiiy *r,"r, his Dw giving water to drink follow the accused around and that under oath that this was ;il-,il a,rty to in my view is a put up o.." beftre. This Dw he had only done it only being at work on the day of the of ir-,* *ppellant witness. The certificate as-the not call its author as a on $id incident I prace no reriance "pp;iii;, ii r.* had so wanted and raises the Dw which he could. uuriti il d:rr._ face of three letter i, u ffiery. Thus, in the question ur-,o *n*at,.r the inJpiiing ."{* witnesses I do not and confidence re,iable, trust worthy has not at all dented the prosecution case' defense case r,vhich berieve the

discussion especially in the face of reliable' trust

11.Thus, based on the above eye witness evidence and other inspirirrg worthy and confid.ence that the above I have no doubt evid.ence rnentioned corroborative/ supportive a reasonable doubt its case against the appellant beyond Y prosecution has proved such the has been convicted ancl sentenced and as he for the offenses for which and the impugned filed by the appelrant is dismissed appeal against conviction is uPhe1d' iudgment

of in the abcve terms'

12.The appeal is disposed

ts l-,J'u