IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr Appeal No. D – 207 of 2019

Conf. Case No. D – 14 of 2019

Cr. Jail Appeal No. D – 209 of 2019

Cr. Acq. Appeal No. D – 185 of 2019

Present:

Mr. JusticeNaimatullahPhulpoto.

Mr. Justice Zulfiqar Ali Sangi.

Appellants: RiazullahandSibghatullah @ Paly Khan through M/s M.S. Azhar and Allah BuxGabol, Advocates.

Respondent: TheStatethrough,Syed Sardar Ali Shah

DPG.

Crl. Acquittal Appeal No.D-185 of 2019.

Appellant/complainant: Mst. Sameena Khan through Mr. Shabbir Ali Bozdar, Advocate.

Respondent/accused: Saeedullah& others

throughMr. A.R. FarooquePirzada, Advocate.

Date of hearing: 10.03.2020& 12-03-2020.

Date of announcement: 19.03.2020.

J U D G M E N T

ZULFIQAR ALI SANGI,J:- Appellants Riazullah son of Rafiullah Khan and Sibghatullah @ Paly Khan son of QudratuillahPathanhave assailed the judgment dated 25.09.2019 passedbylearnedAdditional Sessions Judge-I (MCTC), Ghotki in Sessions Case No.262 of 2012arising out of FIR No.74/2012 offences under Sections 302, 120-B, 114, 337-H(2), 148 & 149 PPC registered at Police Station A-Section, Ghotki, whereby they have been convicted andsentenced todeath as Ta’zir for causing Qatl-e-Amd of deceased Mst.ZubedaBibiand to pay compensation of Rs.500,000/- (Rs. Five lac) each to the legal heirs of deceased and in failure thereof, the same shall be recovered from them as arrears of the land revenue.

2. Learned trial Court after awarding the death penalty to the appellants has also made a Reference to this Court for its confirmation in terms of Section 374 Cr.P.C.

3. The appeals and Reference are now being disposed of by this Court through single judgment.

4.Precisely, the prosecution case is that complainantMst. Sameena Khan lodged FIR at Police Station A-Section Ghotkistating therein thatMst. Zubeda daughter of PirZaman Khan aged about 40 years was her mother. She had three daughters including complainant and Mst. Rubina aged about 24 years, Mst. Aisha aged about 10 years and one son namely Khalid Khan aged about 18 years. Her maternal grandfather had given a piece of the agricultural land to her mother Mst. Zubeda as per her share according to Mohammadan law, had annoyed her maternal uncles accused Asmatullah and others. According to her, her mother Mst. Zubeda had filed a petition before Honourable High Court of Sindh, Bench at Sukkur for protection and as per orders of Honourable High Court, HC Abdul MajeedTagar, PC Hakim Ali Bharo and PC Shah Mohammad Mahar were deputed and strictly directed to provide police protection to her mother Mst. Zubeda whereupon accused Asmatullah Khan and others were annoyed and used to make criminal conspiracy time and again, to kill her mother Mst.Zubeda. On 24.03.2012, in the morning time, complainant Mst. Sameena Khan, her mother Mst. Zubeda, her brother Khalid Khan and her maternal grandmother Mst.KhuwajaKhilla wife of PirZaman Khan alongwith police personnel were standing ontheir land. At about 09:00 a.m, accused Asmatullah, Rafiullah Khan, Qudratullah Khan armed with guns, Saeedullah, Fareedullah, Ubeullah, Attaullah armed with Rifles, Riazarmed with 222 rifle, ZahidAmanullah, Hafeezullah armed with KKs and Sibgatullah armed with 222 Rifle had come there. Per complainant Mst. Sameena Khan accusedAsmatullah told her mother Mst. Zubeda to transfersher land to him but she refused and on her refusal, he instigated other accused not to spare her mother and to kill her. Due to fear of weapons, they did not resist them, but police personnel, who were fully armed with their official weapons and were on their protection duty, too had not resisted the accused. Per complainant, on the instigation of accusedAsmautllah, accused Riaz made direct fire from his 222 Rifle at her mother Mst.Zubeda to kill her, which hit her in the left side breast and went through and through, while accused Sibgatullah @ Paly Khan made direct fire from his 222 Rile at her with the intention to kill her, which hit her in the right side of the abdomen and also went through and through from left side of her abdomen, she raised cries and fell down. Per complainant, thereafter, all the accused made their escape good by making aerial firing as to create harassment and saying the complainant party that same treatment will be given to them if they take any action against them. Her mother had died at the spot within their sight. Then she took the dead body of her mother deceased Mst. Zubeda to the Taluka Hospital, Ghotki, with the help of police and got conducted her post mortem and then brought the dead body back to her village and after completing the funeral ceremony, then she went to the Police Station A-Section Ghotki and lodged FIR against the accused.

5.After the usual investigation, the police submitted challanagainst the appellants/accusedbefore the competent Court of law. The learned trial Court after completingall the legal formalities framedcharge against the appellants/accused,to which they pleaded not guilty and claimed trial; such pleas wereobtained from them respectively.

6.In order to prove its case, the prosecution examined PW-1/complainant Mst. Samina Khan at Ex.15, who produced receipt of receiving dead body and FIR at Ex.15-A and 15-B. PW-2 Khalid Khan was examined at Ex.16. PW-3 IllahiBux was examined at Ex.19, who produced mashirnama of inspecting the place of incident at Ex.19-A. PW-4 Muhammad Akhtar was examined at Ex.20, who produced mashirnama of inspection of the dead body of deceased and inquest report at Ex.20-A and Ex.20-B. PW-5 Mehboob Ali (First Investigating Officer) was examined at Ex.22, who produced entry No.11 and Lash Chakas Form at Ex.22-A& 22-B. PW-6 Dr. Sabira Sultana was examined at Ex.23, who produced post mortem report at Ex.23-A. PW-7 GhulamQadir was examined at Ex.24, who produced mashirnama of arrest and personal search of accused at Ex.24-A. PW-8 Ali Nawaz was examined at Ex.25, who produced mashirnama of arrest and recovery of accused Riazullah and Sibgatullah @ Paly, mashirnama of arrest and recovery of accused Qudratullah, mashirnama of arrest and personal search, a carbon copy of an application forwarded to learned Civil Judge & J.M for recording the statement u/S 164 CrPC of accused and chemical examiner’s reports at Ex.25-A to 25-F. PW-9 Hassan Ali was examined at Ex.26, who produced a confessional statement at Ex.26-A. PW-10Zulfiqar Ali was examined at Ex.27. PW-11 Abdul Jabbar was examined at Ex.28. PW-12 FatehMubeen was examined at Ex.29, who produced Sketch at Ex.29-A.Thereafter, learned DDPP for the State, closed the side of prosecution evidence at Ex.30.

7.After completion of prosecution evidence, learned trial court recorded the statement of the appellants in terms of section 342 Cr.P.Crespectively, wherein they denied the prosecution case andclaimed their innocence, however, accused Qudratullah, Riazullah, Sibgatullah, UbedullahSaeedullah, Asmatullah, Attaullah Khan, Zahidullah, Amanullah, Hafizullah, Fareedullah, and Rafiullah were examined themselves on oath under section 342 (2) Cr.P.C, and led evidence intheir defense and examined DWs namely, DW-1Sarfaraz Ahmed, DW-2 Ahmed Ali, DW-3 Mumtaz Ali, DW-4 Akhtar Ali, DW-5 Waqar Ahmed, DW-6 Gul Muhammad, DW-7 Agha Qurban Ali, DW-8 Muhammad Asghar, DW-9 GhulamFareed, DW-10 Nazakat Ali, DW-11 Mian Muhammad and then the side of defence evidence was closed by the defence counsel.

8. Thelearned trialCourt after hearing the Counsel for the appellants learned DDPP for the State and considering the evidence, passed impugned judgment, which has been assailed through instant appeals.

9. Learned counsel for the appellants/accused contended that the appellantsare innocent and have falsely been involved in this case; that the impugned judgment is against the facts of case and law;that there are major contradictions in the evidence of witnesses, which creates serious doubt in the prosecution case but trial court ignored the same in violation of settled principles of law; that prosecution failed to prove its case beyond shadow of doubt; that PW-1 has deposed that three (03) police constables were security guards of the deceased and they were present at the time of incident, but they were not examined by the prosecution; that Investigation Officer failed to record 161, Cr.P.C statements of the police officials / security guards; that in the cross-examination of eyewitness, it has come on record that weapons were wrapped in a cloth / shawl, but there is no mention of shawl in the mashirnama of recovery, hence, recovery of weapons was doubtful; that it has come on record that the incident had occurred in the morning time and police reached at the place of incident within twenty (20) minutes, but FIR was lodged in the evening time i.e. after seven (07) hours delay; that Investigation Officer has deposed that 164, Cr.P.C statements of accused were recorded by the Magistrate under his supervision such statements carry no weight; that confessional statement of appellant Sibghatullah was recorded after three (03) days of the incident, accused Sibghatullah was arrested on 25.03.2012, whereas, his confessional statement was recorded on 26.03.2012; that Magistrate has mentioned that accused was with him in the chamber and it was locked; that the confessional statement of accused Sibghatullah was not voluntarily; that doctor was not confident / sure that injuries sustained by the deceased lady were the result of same weapon or there were different weapons; that motive was weak and in fact, motive is always double edged weapon; that both parties are closely related to each other; that PW-1 and 2 have clearly deposed that there was litigation between the parties over the property; that no independent witness has been produced by the prosecution to prove the motive except the words of PW-1 and 2; that Investigation Officer has failed to interrogate the motive; that no documentary evidence / revenue record, in order to show the dispute over the agricultural land, has been produced in the evidence; that evidence of Tapedar contradicted the ocular account as regards to the distance from which fires were made by the accused, as PW‑2 stated that fires were made upon the deceased from ten (10) feet; that it was unbelievable that the complainant being lady identified the nature of the weapons; that bloodstained earth was sent to the chemical examiner after five (05) days of the incident; that doctor has certified that death had occurred due to injury No.1 and no where it is mentioned in the evidence of doctor that injury No.2 was fatal to the deceased; that deceased lady had received two injuries; that it is not clear that whose fire was fatal to the deceased; that accused Qudratullah was convicted under Section 13(d), Arms Ordinance, 1965, but he has been acquitted in the Appeal.; that different dates for conducting postmortem were mentioned by complainant and doctor, Complainant stated that it was done on 24.03.2012, whereas, Doctor stated that it was done on 25.03.2012;Doctor stated that PC Akhtar brought the dead body, whereas, PC himself has denied; that all the witnesses are relative to each other and belongs to same family and are interested and their testimony cannot be relied uponLastly, he prayed that appeals may be allowed and appellants may be acquitted.In support of his submissions, counsel for the appellant relied upon the cases of IftikharMehmood and another V. QaiserIftikhar and others (2011 SCMR 1165), Najaf alias Najji and another V. The State and another (2017 P.Cr.L.J 197), Nihaluddin V. The State (2001 YLR 985(2)), Javed Ahmed Siddique and others V. The State (2016 YLR 577), Salman alias Lamba and another V. The State (2018 YLR 1092), Niamat Ali V. The State (2018 YLR 289), Muhammad Akram V. The State (2009 SCMR 230), Naseer Khan V. The State (2008 P.Cr.L.J 979), Shahid alias Punjabi V. The State (PLD 2017 Sindh 717), Muhammad Zaman V. The State and others (2014 SCMR 749),Mudassar alias Yasri V. The State (2019 P.Cr.L.J 141), Abdul Hafeez and 2 others V. The State (2017 YLR 756), Muhammad Sohail V. The State (2018 YLR 99), Jamshed and another V. The State (2016 P.Cr.L.J Note 110), Mst. GulzaranBibi alias Shama V. The State (2017 YLR 705), Muhammad Mansha V. The State (2018 SCMR 772), Muhammad Ramzan V. The State (2017 YLR 696),Samandar alias Qurban and others V. The State (2017 MLD 539), Muhammad Ashraf V. The State and another (2016 MLD 1), Zulqarnain alias Suleman V. The State (2019 P.Cr.L.J Note64),Mst. AmenaGulnaz alias Amena V. The State (2017 P.Cr.L.J 1417), Hayatullah V. The State (2018 SCMR 2092), Muhammad Safeer and another V. The State and others (2017 P.Cr.L.J 1435),Abdul Razzaq V. The State (2009 Cr.L.J 596),MstShamimAkhtar V. FiazAkhtar and two others (PLD 1992 SC 211), Khalid @ Khalidi and 2 others V. The State (2012 SCMR 327), Mst. Asia Bibi V. The State and others (PLD 2019 SC 64), ZafarIqbal alias Kodu V. The State and another (2017 YLR 648), Abdul Sattar V. The State and another (2008 P.Cr.L.J 869), Basharat Ali V. Muhammad Safdar and another (2017 SCMR 1601), Darwaiz Khan alias Gul and another V. Mst. Nishat and another (2015 P.Cr.L.J 1603) andMst. Rukhsana Begum and others V. Sajjad and others (2017 SCMR 596),

10.Learned DPG submitted that prosecution has successfully established itscase against the appellants; that no major contradictions have been pointed out by the defence counsel; thosepolice officials, who were security guards of the deceased, were arrested during the investigation, however, for want of deficient evidence they were released as per record.Learned DPG however, conceded that themotive as alleged in the FIR was not establishedby the prosecution at trial as no particulars of the land were disclosed by the witnesses and no documentary proof thereof has been brought in the evidence; that fatal injury was attributed to accusedRiazullah and injury of appellant Sibgatullah is also established from the medical evidence; that in absence of proof of the motive case of the appellant was not of death sentence but it was a case of imprisonment of life; So far the respondents / acquitted accused in the Acquittal Appeal are concerned, he submits that the role assigned to them was mere aerial firing, but no empties were collected from the place of incident; that trial Court has rightly acquitted the respondents after appreciation of the evidence. Lastly, he submits that the appeal against the acquittal may be dismissed. In support of his submissions, he has relied upon the case reported as Imtiaz alias Taji and another v. The State and others (2020 SCMR 287).

11. Mr. Shabbir Ali Bozdar advocate for the appellant/ complainant in the Acquittal Appeal submitted that trial Court was not justified to record the acquittal in favour of the respondents; that evidence was available in the shape of oral as well as medical but it was not considered by the trial court to the extent of acquitted accused; that regarding the motive complainant and his witnesses in their evidence categorically deposed that there was enmity on the agricultural land; Counsel for complainant submitted that he has produced some documents at this stage, which may be considered and judicial notice may be taken; that the impugned acquittal judgment is perverse and requires interference by this Court; that PirZaman, the father of the deceased was not alive at the time of the incident and he had gifted the land in his lifetime. Mr. Bozdar argued that the complainant had produced documents with regard to the land before the trial Court. In the Appeal against conviction, he has relied upon the cases of NasirIqbal @ Nasra and another V. The State (2016 SCMR 2152), Muhammad Mumtaz and another V. The State and another (2012 SCMR 267), Majeed V. The State (2010 SCMR 55), Dadullah and another V. The State (2015 SCMR 856), Shehzado V. The State (PLD 2005 SC 477), Tanveer Ahmed V.The State (2011 P.Cr.L.J 677) and SainGulWali Khan V. The State (2003 P.Cr.L.J 1264),

12. Mr. A. R. FaruqPirzada learned counsel for the respondent in the acquittal appeal contended that no overt act has been assigned to the respondents / acquitted accused in the commission of the offence; thatas per the case of the prosecution, appellants Riazullah and Sibghatullah had fired upon the deceased and respondent / acquitted accused were armed with weapons only made aerial firing, but only two (02) empties of 222 rifles were recovered from the place of wardat, which shows that allegation of making aerial firing is contradictory; that it is the tendency in this area to involve a number of innocent persons, and respondents were also the fate of such tendency; that appellant Sibghatullah, in his confessional statement, has stated that deceased lady appeared at the place of the incident being armed with churiand hatchet, and threatened the accused to drive away the tractor from the disputed land, else she would attack upon them. Mr. Pirzada argued that the prosecution case could be the result of a sudden fight and there is nothing that respondents share vicarious liability / common intention with the main accused. Mr. Pirzada regarding motive submitted that no documentary evidence was produced to prove the motive. According to the FIR, the father of the deceased had gifted her agricultural land, on which the accused were annoyed. Even possession of deceased over the disputed land had not been established at trial. PirZaman, the father of the deceased, who had gifted the land to her, had also not been examined at trial. His evidence to prove the motive was most material, but it was withheld by the prosecution. The fire was not repeated and single fire has been attributed to both appellants Riazullah and Sibghatullah. In support of his submission, he has relied upon the cases reported as FarhatAzeem V. Asmatullah and others (2008 SCMR 1285), Muhammad Shafi V. Muhammad Raza and another (2008 SCMR 329),Hassan and others V. The State and others (PLD 2013 Supreme Court 793), Latifullah V.The State (2007 SCMR 994), Nawab Ali V.The State (2019 SCMR 2009), DilawarHussain V.The State (2013 SCMR 1582), Muhammad Sarwar @ Saru V.The State (2016 SCMR 210), Mir Muhammad alias Miro V. The State (2009 SCMR 1188) and Ali Bux and others V. The State (2018 SCMR 354).

13. We have heard learned Counsel for the parties and have examined the record carefully with their able assistance. The PWs gave their evidence before the trial court as under:-

14. The evidence produced by the prosecution in the shape of ocular and medical evidence coupled with documentary evidence, includes Postmortem of deceased, recovery of empties of 222 bore rifle from the place of wardat, recovery of blood-stained earth from the place of incident established beyond any reasonable doubt that on 24-03-2012 at about 09.00 amat lands of the deceased, deceased was died due un-natural death result of receiving firearm injuries. Therefore the question before us is to see who killed the deceased for which the prosecution witnesses gave their evidence as under:-

15. PW-1 (complainant/Eye witness) deposed that her maternal grandfather had given an agricultural land to her mother as per her share according to Muhammad Law. On such accused Asmatullah and others were annoyed. She deposed that her mother approached High Court for seeking protection and such a petition was allowed in herfavour, thereafter three police officials namely HC-452 Abdul MajeedTagar, PC 2170 Hakim Ali Bharo and PC 1224 Shah Muhammad Mahar were deployed for her protection. She further deposed that on 24.03.2012 in the morning she along with her mother, her brother namely Khalid Khan and maternal mother KhuwajaKhilla were available at the lands. Then at 09:00 a.m, namely Asmatullah, Rafiullah, Qudratullah armed with guns, Saeedullah, Fareedullah, Ubedullah and Attaullah armed with rifles, Riaz Ahmed armed with 222 rifle, Zahid, Amanullah, Hafizullah armed with KKs and Sibgatullah @ Paly armed with 222 rifles came at the land and accused Asmatullah Khan asked the mother of the complainant to register a sale deed in his name. On refusal, he instigated other accused to kill her. She further deposed that the police officials made negligence in providing protection to her mother and accused Riaz made a direct fire upon her mother in order to commit her murder with 222 rifles, which hit her onthe left side of the chest through and through. Accused Sibgatullah @ Paly made direct fire from his 222 rifles upon her mother which hit her on the right side of the abdomen and was through and through. She raised cries and fell down, all the accused then made aerial firing for causing harassment while saying that if they take action against them they will give the same treatment to her. She deposed that with the help of police officials dead body was brought at Taluka Hospital Ghotki where police prepared the memo of inspection of injuries and the dead body was handed over to her after its post mortem. On the same day, police officials came at place of incident and visited on her pointation, collected bloodstained earth and sealed the same in a plastic jar, also recovered two empties of 222 Rifle from the place of incident and the same were sealed. She was cross-examined by defence counsel but we did not find any material contraction in the evidence.

16. PW-2 (eye witness) during his examination-in-chief deposed that his maternal grandfather had given an agricultural land to her mother as per share according to Muhammadan Law on such Asmatullah and others were annoyed. He deposed that his mother filed a petition before High Court for protection and the same was allowed, thereafter three police officials namely HC-452 Abdul MajeedTagar, PC 2170 Hakim Ali Bharo and PC 1224 Shah Muhammad Mahar were deployed for her protection. He deposed that on 24.03.2012 in the morning he along his mother (deceased), her sister (complainant) and maternal mother KhuwajaKhilla were available in the land then at 09:00 a.m accused namely Asmatullah, Rafiullah, Qudratullah armed with guns, Saeedullah, Faredullah, Ubedullah and Attaullah armed with Rifles, Riazullah armed with 222 Rifle, Zahid, Amanullah and Hafizullah armed with KKs, Sibgatullah @ Paly armed with 222 Rifle came there from whom accused AsmatullahAsked his mother to register a sale deed of such land on his name, on which his mother refused. On refusal accused Asmatullah instigated other accused to kill her. Due to fear of weapons they were silent and police officials who were deployed for protection were made negligence and accused Riaz made a fire upon his mother in order to commit her murder with 222 Rifle, which hit her on her left side of the chest, which became through and through and accused Sibgatullah @ Paly made a direct fire upon her with 222 Rifle which hit her on right side of the abdomen, which was through and through. Thereafter, all the accused made aerial firing for harassment and went away by saying that if they take any action, the same treatment will be given to them. He further deposed that with the help of the police they brought the dead body to Taluka Hospital. After post mortem, they brought the dead body at their village and after the funeral ceremony, his sister lodged FIR against the accused persons. This witness was cross-examined at length but his evidence was not shattered.

17. PW-3 (Mashir)deposed that on 24.03.2012, he was posted as HC at PS Ghotki and on the same day, he alongwith SIP Ali Nawaz Dayo, left the PS for investigation of Crime No.74/2012 and came at the place of the incident; I.O had inspected the same on the pointation of complainant Mst. Samina. He deposed that the SIP Ali Nawaz Dayo had called PirZaman Shah and appointed him as Mashir alongwith him as nobody was available there and prepared such Mashirnama in front of him and co-mashir and obtained their signatures thereon. From the place of incident SIP, Ali Nawaz Dayo secured blood stained earth and placed the same in plastic Jar and sealed it. SIP Ali Nawaz Dayo had also secured two empty shells of 222 rifle from the place of the incident and sealed them separately in front of them. He fully supported the case of the prosecution and during cross-examination defence counsel was failed to succeed in getting material contradictions.

18. PW-4 deposed that on 24.03.2012, he was posted as PC at PS Ghotki. On the same day, he along with ASI Mehboob Ali Mirani went to Taluka Hospital Ghotki where he had inspected the dead body through a lady Dr. Sabira Sultana. The deceased was wearing 'ShawlarKamees' of brown colour. The deceased had sustained two firearm injuries, one on her left breast, and another firearm injury on her right side of the abdomen and both the injuries were through and through. He further deposed that ASI Mehboob Ali Mirani had prepared mashirnama in his presence. He deposed that ASI Mehboob Ali Mirani had prepared inquest report and obtained his signature thereon, thereafter, the dead body was handed over to him for post mortem, which he delivered to the lady doctor, who conducted the post-mortem and lady doctor had handed over to him the same dead body, which he delivered to Mst. Samina and obtained her signature on a receipt. His evidence was also not been shattered by the defence counsel.

19. PW-5 (1^st Investigation Officer)deposed that he was the first Investigating Officer of the case. On 24.03.2012, he was posted as ASI at PS A-Section Ghotki. On that day, he had received information that one dead body was brought at the Taluka Hospital Ghotki. He vide entry No.11 at about 10.00 hours, left the PS for Hospital along with PC Muhammad Akhtar and PC Mumtaz Ali, At the Hospital they met with Dr. Sabira Sultana and he had inspected the dead body and prepared Mashirnama of a dead body, inquest report and Lash Chakasform in presence of PC Muhammad Akhtar and PC Mumtaz Ali and obtained their signatures thereon. He further deposed that he handed over the deadbody along with inquest report to PC Muhammad Akhtar for post mortem. We find his evidence also as reliable.

20. PW-6 (Doctor) deposed that on 25.03.2012, she was posted as Senior WMO at Hospital Ghotki. On the same day, she had received the dead body of Mst. ZubedaKhanum w/o Jalaluddin Khan, by caste MasoodPathan aged about 40 years, for post-mortem examination through PC-1894 Muhammad Akhtar of PS Ghotki, alongwith “Lash Chakas Form” of deceased. The dead body was identified by Mst. Samrin Khan (daughter) and Mst. KhuwajaKhilla (mother). The dead body was of a female, Muslim, of middle age with healthy built and she was wearing a brown printed shirt and brown shalwar. According to her she had started post mortem at 11.30 a.mand finished at 12.30 pm, on the same date. On external examination, she found the following injuries on the person of deceased;

1- 1 lacerated firearm injury on left breast wound was about 5 cm in size with inverted margins (wound of entry) wound, was through and through on back of the chest with averted margins, wound was about 7 cm in size (wound of exit).

2- One lacerated firearm injury on right side of abdomen, wound was about 4 cm in diameter with inverted margins (wound of entry) wound was through and through on left side of abdomen with averted margins (wound of exit), wound was about 6 cm in size.

She further deposed that on internal examination, she found the following damages:-

Walls, Ribs, cartilages, pleura, left lung, pericardium and heart, Blood vessels, walls of abdomen Peritoneum, small intestine, large intestine, right kidney were damaged, whereas all other organs were healthy. However, there was fracture of 5th rib on left side of chest.

From external as well as the internal examination of the dead body of deceased Mst. ZubedaKhanam, WMO was of the opinion that death had occurred due to shock and hemorrhage consequent upon discharge from the firearm. As per her opinion, injury No.1 was severe and fatal and caused death in the ordinary course of nature. The Probable duration between injuries and death was instantaneous; whereas, the probable time between the death and post-mortem was about 3 hours. She then issued such post mortem report, She during her cross-examination, stated that she had started post-mortem at 1130 am. She had received the dead body just ten minutes before starting post-mortem. As per her opinion, there is no difference in the post-mortem of males or females. Prior to this post-mortem, she had already conducted so many post-mortems of females. The size of exit injury No.1 was 7 cm and the size of the second exit injury was 6 cm. The position of both the injuries was different. The position of injuries was not straight she could not say, through which direction the deceased had sustained firearm injuries. During the post-mortem, she had not recovered any bullet or palate from the body. The colour of the injury was pink. The injury, which was sustained by the deceased at her chest was through and through with its exit from the backside. As per her opinion, the deceased had sustained bullet injuries. She had handed over the dead body to one police official after post-mortem. She had received a dead body for post-mortem. As per her opinion, the deceased had sustained two bullet injuries.

21. PW-7 (Mashir) deposed that on 02.05.2012, he was posted as a PC at PS Ghotki. On the same day, SIP Ali Nawaz Dayo had received spy information that bail before arrest application of accused Saeedullah,Attaullah, Ubedullah, and Zaidullah was rejected, as such, he alongwith SIP Ali Nawaz Dayo and PC Fayaz Ahmed left the PS and went to the MatheloChowk, where they waited for the accused, after about 45 minutes all the four accused alighted from the bus, to whom, they had arrested at the spot and SIP had prepared such Mashirnama in his presence and co-Mashir PC Fayaz Ahmed and obtained their signatures thereon. He was also cross-examined but we could not find any material contradiction in his evidence.

22. PW-8 (Investigation Officer) deposed that on 24.03.2012, he was posted as SIP/SIO at P.S. Ghotk. On the same day, ASI Awais Ahmed Lashari had handed over to him the copy of FIR of Crime No. 74/2012 for investigation. On the same day, he had visited place of the incident, on his pointation and prepared such Mashirnama in presence of the Mashirs, namely, PirZaman and HC IllahiBux and obtained their signatures thereon. He deposed that from the place of the incident, he had secured blood stained earth and placed the same in a plastic jar and sealed it. Hehad also secured two empty shells of 222 rifles which were also sealed by him at the spot. Thereafter, on the same day, he had recorded 161 Cr.P.C statements of the eyewitnesses at the Otaq of the complainant. He further deposed that on the same day, ASI AwaisLashari handed over to him Lash Chakas form, Mashirnama of the dead body, inquest report and one receipt. On 25.03.2012, ASI AwaisLashari handed over to him three copies of FIR of crime No.75/2012, 76/2012 and 77/2012 along with mashirnamas of arrest and recoveries, three accused, two 222 rifles, one gun, 5 live cartridges, and 09 live bullets of 222 rifle. He deposed that on the same day, he had recorded 161 Cr.P.C statements of the eye witness of FIR under Section 13DAO cases. On 26.03.2012, he had arrested accused Abdul Majeed, PC Shah Muhammad, and PC Hakim Ali near Islamia Public School Ghotki and prepared such Mashirnama, in presence of the Mashirs HC IllahiBux and PC Muhammad Akhtar, On 26.03.2012 he had submitted one application to II Civil Judge & Judicial Magistrate for recording 164 Cr.P.Cof the statement of accused Sibgatullah alias Paly, and on the same day learned Judicial Magistrate had recorded the confessional statement of accused Sibgatullah alias Paly. On 29.03.2012 he had dispatched the blood-stained earth to chemical Laboratory Rohri, which report was positive. On 02.05.2012 he had arrested four accused Saeedullah, Ubedullah, Attaullah and Zahidullah from Mathelochowk and prepared such Mashirnama in presence of PC GhulamQadir and PC Fayaz Ahmed and obtained their signatures thereon. He had also sent weapons to the Forensic Laboratory Larkana and received the report which was against the appellants. Thereafter, he had submitted the challan of this case and placed the names of three accused, namely, HC Abdul MajeedTagar, PC Shah Muhammad and PC Hakim Ali in column No.2 of the challan (Who were deployed for protection of the deceased). He was cross-examined at length but we do not find and material contradiction in favour of the appellants.

23. PW-9 Judicial Magistratedeposed that on 26.03.2012, he was posted as 2nd Civil Judge/Judicial Magistrate Ghotki. On the same day, accused Sibgatullah alias Paly was produced before him for recording his confessional statement by the SHO PSGhotki. After completing the legal formalities, he had given him time for reflection from 12.00 PM to 2.00 PM and thereafter again he was called by him and enquired from him about any compulsion or coercion from the side of the police, to which, he replied in negative, and showed his voluntariness to record his confessional statement and further clarified that no any compulsion or coercion from any quarters was exerted upon him. Thereafter, he had recorded his confessional statement as per his verbatim, the contents, whereof, were read over to him, to which he accepted to be true and then signed thereon. He had also certified at the bottom of his confessional statement and signed on it. This witness was cross-examined but his evidence was not shattered by the defence.

24. PW-10 deposed he had been called as a well conversant with the signature and handwriting of late ASI MuhamadAwaisLashari, as he had expired about one year ago due to his natural death and he had worked with him for about 5/6 months at PS A-Section Ghotkiand he is well conversant with his handwriting so also his signature. He saw FIR produced at Ex.15-B and admitted the signature of late ASI Muhammad AwaisLashari. He also saw Mashirnama of arrest and recovery of accused Riazullah and Sibgatullah alias Paly, produced at Exh.25-A and admitted signature of late ASI Muhammad AwaisLashari on it. He also saw Mashirnama of arrest and recovery of accused Qudratullah at Exh.25-B and admitted signature of late ASI Muhammad AwasiLashari on it.

25. PW-11 (Mashir) deposed that on 25.03.2012, he was posted as a PC at PP Mathelo of PS A-Section Grotki. On the same day, he alongwith ASI Muhammad AwaisLashari, PC Nisar Ahmed, and PC Akbar Ali Khaskheli left PS in an official vehicle, which was driven by DPC Taj Muhammad under entry No.11 at about 10:30 a.m for patrolling purpose. After visiting different places when they went via link road Mathelo road, where at about 11:30 a.m ASI AwaisLashari had received spy information that two wanted accused of crime No.74/2012, u/s 302 PPC of PS Ghotki, namely Riazullah and Sibgatullah alias Paly were available at Ablu Bridge (Puleh) along with crime weapons. Thereafter, ASI Muhammad AwaisLashari informed them about the availability of both the accused at AbluBridge and then they rushed towards the pointed place where they reached 11.45 hours and found both the accused along with weapons. He deposed that on seeing them in a police uniform both accused had tried to run away but they alighted from the police mobile and after following them, they had arrested both the accused as they had raised their hands for arrest. After their arrest, ASI enquired from them about their identity, to which, one accused disclosed his name as Riazullah and ASI recovered from him one 222 rifle, alongwith the magazine, which contained four live bullets, whereas, another accused disclosed his name as Sibgatullah alias Paly, and ASI also recovered one 222 rifle from his possession alongwith magazine which contained five live bullets. Both the accused had disclosed that both the 222 rifles were unlicensed and further disclosed that they had used these rifles in the murder of deceased Mst. Zubaida he appointed him and PC Nisar Ahmed as Mashirs, and obtained their signatures thereon.

26. PW-12 Tapedar deposed that on 02.04.2012, he was posted as Tapedar, at Tapo Beriri, dehBhanjero, TalukaGhotki. On the same day, he had received directions from MukhtiarkarGhotki, vide his office letter No.G-74/2012 dated 28.03.2012 for preparing the sketch of the wardat. After receiving such directions, on the pointation of PC Mumtaz son of RasoolBuxChachar, belt No.1740, complainant Mst. SaminaParveen d/o Jalaluddin, PW Khalid Hussain son of Jalaluddin and Mst. KhuwajaKhilla w/o PirZaman, a prepared sketch of place of incident and exhibited the same in his evidence. He was also cross-examined but could not find any material contradiction in his evidence.

27. On careful scrutiny,we have come to the conclusion that prosecution has proved its case against the appellants. Ocular evidence was corroborated by medical evidence. Contradictions highlighted by defence counsel were minor in nature.The confessional statement of the appellantwas recorded after completing the legal formalities and was recorded in accordance with the law. We found it true and voluntary. The oral evidence is supported by medical evidence as stated above and recovery of the empty shells of 222 bore rifle from the place of wardatso also 222 bore rifles from the possession of the appellants which were sent for FSL and the FSL report is in positive. It is the well-settledprinciple of law that when the prosecution proved the case beyond a reasonable doubt then if in the case there are some minor contradictions in the evidence of prosecution case which are not sufficient to acquit the accused then the same is to be ignored and on that basis accused cannot be acquitted reliance can be place in case of Zakir Khan and others V. The State (1995 SCMR 1793).

28. As regards to the confessional statement of appellant Sibgatullah we are of the affirm view that it was recorded after completing all legal formalities, we from its narration also found it to be true and voluntary wherein the appellant admitted the presence of all accused at the place of the incident with alleged weapons and firing upon the deceased by him and co-appellant Riazullah from 222 bore rifles. The Appellant also confessed about the recovery of the weapons from him and appellant Riazullah. The contention of the learned counsel for the appellants that the confession was recorded after the delay of one day and therefore cannot be relied upon against the appellants has no force as the delay in recording the confessional statement of an accused by itself is not sufficient to adversely affect its, validity. No hard and fast rule can certainly be laid down about the period for recording such confession during the investigation. The record reflects that appellant Sibgatullah and Riazullah were arrested on 25-03-2012 along with the same weapons used by them in the commission of the offence and the confessional statement of appellant Sibgatullah was recorded by the Magistrate on 26-03-2012.It is a well-settled principle of law that any lapse on the part of Magistrate in recording confession cannot always be treated as fatal to the evidentiary value of confession if the court is satisfied that the said lapse has not in any way adversely affected the voluntariness or truthfulness of the confession. It is also a well-settled principle of law that a voluntary and true recorded confession requires no corroboration and is sufficient for conviction, but as a rule of procedure, the court is required to seek corroboration of the same on material particulars, the evidence produced by the prosecution on the point of carrying weapons by the appellants at the time of occurrences and use of such weapons by them and its recovery from appellants at the time of their arrest and the recovery of empties from the place of wardat with the positive report of FSL are corroborated with the confessional statement made by the appellant Sibgatullah. Reliance can be placed in case Majeed V. The State (2010 SCMR 55).

29. Contentions of the learned counsel for the appellant that the witnesses are closed relatives to the deceased and are interested witnesses has also no force particularly in the case in hand as they are natural witnesses and are also relatives of the accused persons. Both the witnesses remained consistent during the trial on all material particulars of the prosecution case in so far as the role attributed to the accused was concerned. Testimony of prosecution witnesses was corroborated by medical evidence, which was consistent with the ocular account in so far as the weapon, locale of injury and time which elapsed between the injury and postmortem examination were concerned. The implication of the near relatives including the brothers of the deceased ruled out the possibility of false implication and even otherwise it was repellent to common sense that complainant would let off real culprits and involve someone else.

30. We have also observed that the prosecution has failed to prove the motive as asserted in the FIR. The complainant in the FIR stated that accused Asmatullah and other were annoyed as the mother of complainant received a share from her father and they approached her to register the same in their name, she (Mother of the complainant) approached the High Court for protection which was granted to him but complainant failed to produce any record of such asserted motive before the trial court in the shape of documentary evidence though according to witnesses were available with them. Complainant and witnesses also failed to bring on record neither theSurvey numbers of the said land nor any record of ownership of the land. There is no cavil to the proposition that the motive is not a condition precedent to warrant a finding of guilt. However, it has been found by the Honourable Supreme Court to be relevant while considering the question of the sentence as has beendiscussed by the Honourable Supreme Court of Pakistan in cases of Ahmed Khan V. AbdurRasheed (2008 SCMR 378), Muhammad Yaseen V. The State (2011 SCMR 905), IftikharMehmood and another v. QaiserIftikhar and others (2011 SCMR 1165), Muhammad Mumtaz and another v.The State and another (2012 SCMR 267), Muhammad Imran alias Asif v.The State (2013 SCMR 782), SabirHussain alias Sabri v.The State (2013 SCMR 1554), ZeeshanAfzal alias Shani and another v.The State and another (2013 SCMR 1602), Naveed alias Needu and others v.The State and others (2014 SCMR 1464), Muhammad NadeemWaqas and another v. The State (2014 SCMR 1658), Muhammad Asif v. Muhammad Akhtar and others (2016 SCMR 2035), Qaddan and others v. The State (2017 SCMR 148) and Imtiaz alias Taji and another V. The State and others (2020 SCMR 287).

31. Besides the motive which has not been proved by the prosecution other mitigating circumstances are also available in the case in hand for converting the death sentence into the imprisonment for life, both the appellants made only one fire from their respective weapons and not repeated the same upon the deceased, the appellants and complainant party are near relatives so also the acquitted accused persons were the brothers of the deceased lady, Recovery of only two empties shells of 222 bore rifle from the place of wardat though it was alleged in the FIR that appellants and other accused persons also fired in the air for causing harassment to the complainant party. Reliance can be placed on the case of Imtiaz alias Taji and another V. The State and others (2020 SCMR 287).

32. For all these reasons we have decided to exercise caution in the matter of the appellant's sentence of death and have felt persuaded to reduce the said sentence of death to imprisonment for life. Both the appeals filed by the appellants are, therefore, dismissed and the conviction of the appellants on the charge under section 302(b) r/w section 34, P.P.C are maintained but these appeals are partly allowed to the extent of the appellant's sentenceof death which is reduced to imprisonment for life. Compensation, as ordered by the trial court in terms of section 544-A Cr.P.C is maintained; in default of payment of compensation, the sentence awarded by the trial court is also maintained. Appellants are entitled to the benefit of section 382-B Cr.P.C, and all the sentences are ordered to run concurrently. The confirmation reference No: D- 14 of 2019 made by the trial court against the appellants is answered in negative.

33. Turning to the case of Respondents who were acquitted by the trial court and against such complainant filed acquittal appeal we have carefully scrutinized the evidence of the prosecution and the findings of the learned trial court in the judgment we found no case for interference in the judgment to this extent.Appellants not made any fire upon the deceased so also upon the prosecution witnesses, no recovery of the empties shells of the weapons carrying by the appellants at the time of the alleged offence is sufficient ground with the trial court to acquit the respondents and they were rightly acquitted. It is well settled by now that the scope of appeal against acquittal is very narrow and there is a double presumption of innocence and that the Courts generally do not interfere with the same unless they find the reasoning in the impugned judgment to be perverse, arbitrary, foolish, artificial, speculative and ridiculous as was held by the Supreme Court in the cases of State Versus Abdul Khaliq and others (PLD 2011 SC 554). In these circumstances and the evidence discussed above the Cr. Acq. Appeal No. D – 185 of 2019 is dismissed.

34. In the above terms Cr Appeal No. D – 207 of 2019, Conf. Case No. D – 14 of 2019, Cr. Jail Appeal No. D – 209 of 2019 and Cr. Acq. Appeal No. D – 185 of 2019 are disposed of.

JUDGE