IN THE HIGH COURT OF SINDH,BENCH AT SUKKUR
Criminal Appeal No. S-93 of 2013
Appellant: Mushtaque Ahmed
Kobhar, through Mr. Ubedullah K Ghoto, Advocate.
Complainant: Through Mr.
Shamsuddin N. Kobhar, advocate.
The
State: Through
Syed Sardar Ali Shah,
Deputy
Prosecutor General.
Date
of hearing: 14.02.2022.
Date
of decision: 18.04.2022.
J U D G M E N T
ZULFIQAR ALI SANGI, J:- Through this appeal, appellant Mushtaque Ahmed Kobhar,
has challenged the Judgment dated 10.10.2013, passed by learned 3rd Additional
Sessions Judge, Mirpur Mathelo, in Sessions Case No.270/2005 re-“The State v. Muhammad Hayat and
others”, arising out of Crime No.149/2005, registered at Police Station
Daharki, under Section 302, 324, 114, 34 PPC, whereby the appellant was convicted for the offence u/s 302(b)
PPC and sentenced to suffer life imprisonment as Tazir
and to pay fine of Rs.50,000/- as compensation to the legal heirs of deceased
as provided under Section 544-A Cr.P.C and in default thereof to further
undergo SI for six months more.
2. The brief facts of the prosecution case are
that complainant Nawab son of Unar Kobhar lodged F.I.R, at police station
Daharki on 04.11.2005 at about 1230 hours, alleging therein that Sijawal Kobhar
aged about 15/16 years, was his nephew and Jageer Kobhar aged about 13/14 years,
was son of his sister. Their married nieces are residing in village Jumo Kobhar.
There was dispute with Mushtaque Kobhar on visiting their nieces. Mushtaque
Kobhar prevented them to come in the village, but on the day of incident
"Eid-Day", complainant along with his brother Mazari and his nephew
Zameer Ahmed went on the motorcycle to give "Sweet" on the eve of Eid
to their married women. Jageer and Sijawal were ahead, while complainant was on
their back. When they reached at village Jumo Kobhar near the house of Hazaro
Kobhar at 10:30 a.m, accused Mushtaq
having Kalashnikov, Hayat with gun, Sobharo with pistol and Morero
came out from their houses. Accused Morero instigated
other accused that in-spite of their prevention from visiting the village they
have come here, on such accused Mushtaq fired with
his Kalashnikov at Sijawal and Hayat fired with gun at Jageer, who fell down,
Sobharo fired with his pistol upon complainant party which missed. The accused after
firing went away and then complainant saw Sijawal having fire-arm injury on the
left side which was through and through and Jageer had received injuries on
shoulder, thigh and right arm. Thereafter, the complainant party took them to
Daharki Hospital, from where after first aid they took Sijawal to Rahimyar
Khan, who died on the way. On their return they left the dead body in Daharki Hospital
and went to police station, where complainant lodged the F.I.R, against
accused.
3. Earlier charge against accused Muhammad Hayat, Sobharo and Morero was framed on
25.9.2007 at Exh:04, but during trial proceedings accused Muhammad Hayat and
Moriro were murdered on 25.3.2008, for that F.I.R bearing Crime No:68/2008 at
police station Daharki was registered and subsequently proceedings against
accused Muhammad Hayat and Moriro, were abated. Subsequently accused Mushtaque
was arrested on 20.09.2011.
4. After
supplying relevant documents as required under section 265-C Cr.P.C, on
08.9.2011 formal charge against accused Sobharo and Mushtaq was framed at Exh:13, to which they pleaded not
guilty and claimed trial, vide their plea recorded at Exh:13-A and 13-B,
respectively.
5. In order
to substantiate charge against accused Sobharo and Mushtaque, prosecution has relied
upon the evidence of P.W No:1 S.I.P Aftab Ahmed Farooqui
(Exh:09), who produced memo of arrest of accused Hayat and Sobharo at Exh:9-A,
Chemical Examiner report at Exh:9-B, F.S.L report at Exh:9-C. P.W No:2 Nawab
Ali (Exh:14), he produced F.I.R at Exh:14-A. P.W No:3 Jageer (injured) at
Exh:15. P.W No:4 Gosho at (Exh:18),
he produced memo of injuries of injured Jageer at (Exh:18-A), he produced memo
dead body seen at (Exh:18-B), inquest report at (Exh:18-C), memo of last worn
cloth of deceased at (Exh:18-D), memo of place of incident at (Exh:18-E). P.W
No:5 Inspector Abdul Wahab at (Exh:19), who produced
"Lashchakas" form at (Exh:19-A). P.W No:06 Dr. Permanand at (Exh:20), who produced memo of injuries
of injured Jageer at (Exh:20-A) and autopsy report of Sijawal
at (Exh:20-B), "Lashchakas" form at
(Exh:20-C), police letter at (Exh:20-D). P.W No:07
Ghulam Nabi Tapedar at (Exh:21), he produced sketch of place of wardat at
(Exh:21-A). P.W No:8 A.S.I Abdul Razzak at (Exh:22).
P.W No:09 D.S.P Ansar Ali at (Exh:23), he produced memo
of arrest at (Exh:23-A). P.W No:10 P.C: Allah Bux
(Corpse bearer) at (Exh:25), he produced receipt at (Exh:25-A). On 20.9.2013,
learned counsel for accused moved an application for re-calling the witnesses
Aftab Hussain Farooqui and SIO Ansar
Ali Mithyani which was allowed by consent and they
were cross-examined. Thereafter, learned A.D.P.P for the State vide statement
(Exh:26) dated: 26.9.2013 closed the side of prosecution.
6. Learned counsel for the appellant
has contended that the prosecution has failed to prove its case beyond
reasonable doubt; that learned trial Court did not appreciate the important
aspect regarding the major contradictions in the evidence of prosecution witnesses
besides there is conflict in the ocular and medical evidence regarding injury
No.1 sustained by the deceased which has not been considered by learned trial
Court; that as per FIR, the fire made by appellant was hit to deceased Sijawal
on left side of stomach whereas the postmortem report reveals that the same was
sustained by him at abdominal cavity deep at left lumber region; that PW Nawab
Ali deposed in his cross-examination that they were going towards northern side
from southern side and accused came from southern side, accused made fire at a
distance of ¾ feet, which disprove his presence at the place of incident; besides
there are many lacunas and contradictions in the evidence of PWs; that learned
trial Court has decided the case on the basis of allegation listed in the FIR
without either appreciating or considering the evidence or other material
available on record; that alleged crime weapon has not been recovered from the
appellant; that the impugned Judgment is against the law, facts, principles of
natural justice and equity; that learned trial court has erred in convicting
the appellant by not taking into consideration the entire material and thus the
impugned Judgment is liable to be set-aside. He finally prayed that by
extending benefit of doubt, the appellant may be acquitted. In support of his
contention, learned Counsel placed reliance on the cases of Barkat Ali vs. Muhammad Asif and others (2007 SCMR 1812), Zahir Yousif and another vs. The State and another (2017 SCMR
2002), Muhammad Ali and others v. The
State and others (2021 P Cr L J Note 13), Ghulam Muhammad and others vs. The
State (2019 YLR 2037), Muhammad Ramzan vs. The State and 2 others (2021 P Cr L
J Peshawar 1362), Imtiaz Ali vs. Qurban Ali and 2 others (2020 MLD 1188), Talib
Hussain Jatoi vs. The State (2018 YLR 469), Nooro
alias Noor Muhammad Shar and another vs. The State (2018 P Cr. L J Note 52),
Tariq Pervez vs. The State (1995 SCMR 1345), Muhammad Akram
vs. The State (2009 SCMR 230) and Dilmurad vs. The
State (2010 SCMR 1178).
7. Learned Counsel representing the
Complainant submitted that there is active role of appellant in the commission
of offence and the learned trial Court has rightly passed the impugned judgment
by elaborating the material available on record as well as evidences of prosecution
witnesses. He further contended that there is no any delay in lodgment of FIR,
therefore question of involvement of appellant in commission of offence after
consultation does not arise; that the prosecution has proved its case against
the appellant beyond shadow of reasonable doubt; that minor contradictions in
the evidences of prosecution witnesses cannot weaken the case of prosecution
until and unless gross illegality or irregularity reflects from the impugned
judgment; that the injury sustained by deceased attributes to the appellant is
supported from the medical evidence, which is unshaken; that conviction has
rightly been awarded to the appellant; that impugned judgment does not invite
interference of this Court and liable to be maintained.
8. Learned DPG appearing for the
state has supported the impugned judgment and further contended that the
prosecution has proved its case against the appellant beyond any reasonable
shadow of doubt by producing oral as well as documentary evidence; that the learned trial court has
rightly convicted the appellant and he does not deserve any leniency; that
there appears no illegality or irregularity in the impugned judgment which is
well reasoned and does not require any interference of this court. In support
of his contention, he placed reliance on the cases of Abdul Khalique vs. The State (2015 YLR 1015),
Sheeraz Khan vs. The State (2010 SCMR 1772), Faisal
Mehmood and another vs. The State and another (2010 SCMR 1025) and Khadim
Hussain vs. The State (PLD 2010 SC 669).
9. I have heard learned
counsel for the parties and have gone through the material available on record
with their able assistance.
10. The
prosecution examined complainant of the case namely Nawab Ali who deposed that
on 04-11-2005, at about 10:30 a.m the present incident took place. On the same
day he along with his brother and Zameer were on one Motorcycle and Jageer and
Sijawal were on another Motorcycle were going towards village of Jumo Kobhar.
The day of incident was Eid day and they were going to meet his nieces for the
purpose of Eid, when they reached near the village Jumo Kobhar near house of
Hazaro Kobhar they saw that accused Mushtaque was armed with K.K. Hayat was
armed with gun, Sadoro was armed with pistol and on
instigation of accused Moriro accused Mushtaque made straight fire on Sijawal
with his K.K which hit him and he fell down on the ground. Accused Sobharo also
fired upon them but the same were missed. Then accused ran away alarming slogans
and they saw that Sijawal was seriously injured and blood was oozing. Jageer
was also received fire-arm injury on his left shoulder, right thigh, left arm
and blood was oozing. They took the injured towards Daharki hospital for
medical treatment. Hospital authorities referred Sijawal to Rahimyar Khan and
on the way Sijawal succumbed to his injures. He further deposed that they came
back to hospital for postmortem of deceased and then went to P.S and lodged the
FIR. The police visited the place of wardat on his pointation. The police secured
blood stained earth from the place of wardat. He was cross-examined at length
and during cross-examination some admissions come on record in respect of the
incident in which one person was murdered and another received firearm
injuries. On suggestion made on behalf of the accused this witness replied that
“It is incorrect to suggest that we
attacked upon accused party in order to kill Mst:
Meenhan.” In another suggestion he replied that “It is incorrect to suggest that Soomar is annoyed with us therefore,
he himself not come forward as complainant and we falsely implicated the
present accused in hurry.” Again on
a question made to him he stated that “It
is incorrect that accused not fired upon the deceased as alleged Sobharo also
fired upon us from distance of 6/7 feet.” He further stated that “It is incorrect that I along with PWs went
to house of Meenhan Mai to murder her for which they
have lodged the FIR against us. It is incorrect that we fired upon Meenhan and
said was missed and hit to Sijawal who fell down on the earth. It is incorrect
that we left the scene after firing.” The evidence of this witness is carefully
examined but nothing favourable to appellant was found.
11. The
prosecution examined another important witness Jageer who is the injured
eye-witness. He deposed that on 04-11-2005,
present incident took place; it was 10:30 a.m their relative’s ladies are
married in village Jumo Kobhar. Accused were annoyed with them due to visiting
their houses. They also restrained them not to visit their village. It was Eid day
after offering the Eid prayer they obtained the sweet and went towards the
house of their relative ladies along with complainant, Mazari, Sijawal and Zameer.
When they reached near the house of Hazaro Kobhar it was 10-30 a.m. they saw
accused Mushtaque armed with K.K, Hayat armed with gun, Sobharo armed
with pistol and Moriro, coming towards them. Accused Moriro instigated
co-accused to kill the complainant and his witnesses, on which accused Mushtaque
made straight fire upon Sijawal which hit him who fell down, with intention to
commit the murder. Accused Hayat fired upon him which
hit on his body Accused Sobharo also fired upon the complainant and Mazari. Then
accused ran away towards their houses. Thereafter, complainant and P.Ws took
them towards Daharki Hospital for medical treatment. Injured Sijawal was
referred to Rahimyar Khan Hospital and on the way injured succumbed to his injuries.
He deposed that he received injures on left shoulder and right arm and thigh.
Then complainant went to police station and lodged the FIR against accused.
Police inspected injuries on his body. Police recorded his statement. This
witness was cross-examined at some length and during cross-examination this
witness cleared the position in respect of the suggestions made on behalf of
the appellant that the complainant party attacked upon Mst. Meenhan for her
murder as they declared her kari he stated that
“It is correct that prior to this
incident Meenhan was declared Kari but later on faisla was held thereafter, his
father himself contracted her marriage with one Sodho.” If the position
is as stated by this witness then the defence taken by the appellant that
complainant party came to murder said Meehan and they received injuries from
themself is totally unbelievable. This witness also stated during
cross-examination that “Accused Mushtaque
fired single fire on the deceased Sijawal.” He also negated the suggestions
that they attacked upon Mst. Meehan for murder and stated in cross-examination
that “It is incorrect to suggest that we attacked
upon the accused party in order to murder Meenhan and fired upon her which hit
to deceased Sijawal. It is incorrect to suggest that Mushtaque had not fired on
Sijawal.”
12. The
mashir namely Dhani Bux was examined by the prosecution who deposed that on
04-11-2005, he was present at Daharki town, where he came to know that P.W
Jageer had received the injuries and Sijawal has been murdered. Police
inspected the injuries of injured Jageer and prepared the mashirnama in his
presence and in presence of co-mashir Jatoi. The Subedar had also seen the dead
body of deceased Sijawal lying in the dead house of civil Hospital Daharki, he had also seen one fire-arm injury on the left
side of abdomen of the deceased Sijawal. Such memo was prepared by the Subedar
in his presence and in presence of co-mashir Jatoi. Same Subedar had prepared
the inquest report of dead body of deceased in his presence and in presence of
co-mashir Jatoi. Thereafter, they had taken the dead body of the deceased to
his house where his blood stained clothes were taken and he himself as well as
co-mashir had produced the blood stained clothes before police at police station,
where such memo was prepared in his presence and in presence of co-mashir. He
deposed that on the same day Subedar had visited the place of wardat in his
presence and in presence of co-mashir Jatoi and it was about 1-45 PM to 2-00 PM
time. The place of wardat is situated in deh Jumo Kobhar. The Subedar had collected
the blood stained earth from the spot and had put such blood stained earth in a
plastic shopper. Five empty shell of automatic machine and six empty shells of 12
bore cartridges were secured from the place of wardat which were also put in a plastic
shopper, one empty shell of pistol bullet was also secured by the Subedar, one
CD-70 Motorcycle of red colour was secured by the Subedar from the spot and on
inspection found having bullets on its seat and fuel tank. Such mashirnama of
place of wardat, recovery of bullets casings, 12 bore cartridges, Motorcycle,
blood stained earth was prepared by Subedar on spot in his presence and in
presence of co-mashir. He deposed that the recovered Motorcycle and other
secured property were brought to police station in police mobile. He was cross-examined
at length and while replying the questions this witness negated the suggestions
by stating that “It is incorrect to say
that Mst. Meenhan was declared "Kari" by her father and her uncle the
complainant of this case. It is incorrect to say that injured Jageer and deceased
Sijawal had gone to kill Mst. Meenhan along with other persons. It is incorrect
to say that the injured Jageer and deceased Sijawal had received fire-arm shots
from their own companions in wardat to commit murder of Mst. Meenhan who luckily
made save.” No major contradictions favourable to the appellant are found
in his evidence.
13. The
prosecution examined investigation officer of the case namely Abdul Wahab as PW.No:5
who deposed that on 04-11-2005, he was posted at police station Daharki in
investigation branch. He received the FIR No.149/2005 u/s 302 PPC, for
investigation and perused the contents of FIR. Complainant himself arrived
before him and he took him to Taluka Hospital Daharki and inspects the injuries
of injured P.W Jageer who had six fire-arm injuries. He had prepared such
mashirnama of injuries in presence of mashirs Jatoi and Gosho. Thereafter, he
recorded statement of P.W Jageer u/s 161 Cr.P.C. and went to mortuary of Taluka
Hospital and saw the dead body of deceased Sijawal properly who had received
one fire-arm shot from left side of abdomen which has gone through and through
and the exit wound was on right side of his abdomen. He had prepared such
mashirnama of dead body and inquest report for the dead-body of deceased. Thereafter,
right from Taluka Hospital Daharki along with complainant and same mashirs
proceeded to village Jumo Kobhar Dhandh Raharki. The place of wardat was pointed
out by complainant Nawab, which was situated near the house of accused Moriro
Kobhar and it was just on kacha sarak where the blood was lying on the earth.
The complainant pointed out that the blood lying at wardat on south side was
belonging to deceased Sijawal and blood available on the northern side was
belonging to P.W
Jageer which he collected and sealed separately.
He also recovered one Motorcycle of red colour CD-70 bearing Registration No.4529.
He also recovered six empties of 7.62 bore bullets and five empties of 12 bore empty
cartridges from the Wardat as well as one 30 bore empty bullet from the wardat
which were taken in police custody which were not sealed at the spot. The Motorcycle
was seen and he found one bullet hit on its seat and one bullet hit on its fuel
tank which was also taken in police custody and such memo of wardat was prepared
by him in presence of mashir which was explained to them their LTl’s were obtained. He received the blood stained clothes
of deceased from the doctor through constable Allah Bux and prepared such mashirnama
of the production of blood stained clothes. Thereafter, he was transferred to
some other police station and handed over the papers to Inspector Ansar Ahmed Mithyani. The
investigation officer was cross-examined at length but I could not find any
contradiction in his evidence.
14. The prosecution also examined Ansar
Ali as PW-09 who deposed that on 24.11.2005 he was posted as SIO at P.S Daharki.
Where he received FIR vide crime No.149 of 2005 u/s 302 PPC for investigation.
He perused the papers already prepared by investigation officer SIP Abdul Wahab
Pitafi. On next day, he recorded statement of remaining witness namely Jageer
u/s 161 Cr.P.C. Thereafter on 01.12.2005 during investigation when they reached
at Raharki Chowk he apprehended two persons, they disclosed their names to be
Muhammad Hayat and Sobharo, who were required in crime No.149/2005, and
prepared such mashirnama in presence of SIP Aftab Ahmed and HC Muhammad Azeem.
On 07.12.2005 he arrested accused Moriro from Muhammad Pur road and prepared
such mashirnama in presence of mashirs Sahibdino and Wariyam. After completion
of usual investigation, he submitted the case before the court of law. He was
cross-examined, in which he negated the suggestion that he completed all the
formalities at investigation office at the instance of complainant party. He
further stated in his cross-examination that “It is fact that P.W Mazari Kobhar in his 161 Cr.P.C statement dated
25.11.2005 recorded before me stated that accused Mushtaque Kobhar caused
fire-arm injury to deceased Sijawal on his left side of abdomen which was
through & through. It is fact that P.W Mazari in his 161 Cr.P.C statement
also stated before me that injured Jageer Kobhar was having fire-arm injuries
on his left shoulder, right arm and thigh. It is fact that P.W Mazari is real
brother of complainant Nawab.” On careful scrutiny I do not find any
substance favourable to appellant.
15. The
prosecution also examined PW Ghulam Nabi the Tapedar of the beat who exhibited
the sketch of the place of wardat which was prepared during the investigation.
The prosecution also examined PW Allah Bux who deposed that on 04.l1.2005, he
was posted as police constable at police station Daharki in investigation
branch. On the said date at about 01-30 p.m. SIP Abdul Wahab Pitafi delivered
him the dead-body of deceased Sijawal Kobhar for post-mortem under inquest
report. He took the dead-body to Taluka Hospital Daharki along-with one Abdul
Rehman Kobhar and delivered the dead-body to Doctor Permanand of Taluka
Hospital Daharki for post-mortem and report who conducted the post-mortem of
deceased thereafter he delivered the dead-body of deceased to Abdul Rehman
Kobhar relative of deceased under receipt. These both witnesses were
cross-examined but I do not find any substance favourable to the appellant. PW
Abdul Razzak the Head Constable, author of the FIR was examined, however he was
not cross-examined as the registration of FIR is not disputed.
16. In
support of the ocular evidence as discussed above the prosecution examined Dr. Permanand
who conducted the postmortem of deceased and medically examined the injured
Jageer. He deposed that on 04-11-2005, he was posted at Taluka Hospital Daharki.
On the same date, he received injured Jageer
son of Arz Muhammad, Kobhar
and deceased
Sijawal son of Soomar through police letter No. 149/2005, for
treatment, medical certificate-and postmortem. First of all, he examined
injured Jageer and found following injuries on his person.
1-A Lacerated
punctured wound I cm in diameter and
through & through over posterior aspect of
left shoulder
margins inverted [wound of entrance]
1-B Lacerated wound l cm in diameter through
& through over anterior aspect of left shoulder margins an averted [wound
of exit]
2-A Lacerated wound l cm x 1.5 cm x muscle deep
over anterior aspect of left chest wound is open in its whole course injuries
is through and through.
3- Lacerated wound 3 cm x l cm x muscle deep
over
posterior aspect of right elbow joint wound is
open in
its whole course injury is through and through.
3-A Lacerated
punctured wound 1 cm in diameter through and through over anterio
aspect of upper part of the thigh. Margins inverted.
4-B Lacerated
wound l cm in diameter through and through over anterio
medical aspect of upper left thigh. Margins averted [wound of exit]
5- Lacerated
punctured wound 1 cm in diameter through and through over anterio
medical aspect of upper left thigh margins inverted would of entrance.
6- Lacerated
punctured wound 1 cm in diameter x muscle deep over middle of left leg margins
inverted wound of entrance.
7- Abrasion 1 cm
in diameter over right lower leg.
The X-Rays of
injured were taken bearing plate No.L-749, 750. 751, 752, 753 dated 04-11-2005.
X-Rays do not show anybody lesion but two radio opaque shadow of big pellet were
seen in these X-Rays. As per his
opinion all the injuries were caused by fire-arm and injuries No. l to 06 were Ghyr Jaifah Mutalimah
and injury No.7 Jurh Ghayr Damiyah.
He further
deposed that thereafter he examined the dead-body of deceased Sijawal son of
Soomar by caste Kobhar. Body was brought by PC/1726 Allah Bux
Samo. I/T P.S Daharki, vide
letter No.Cr/-149/2005. Body was identified by Soomar
and Mazari father and uncle of deceased on 04-11-2005. He conducted postmortem
at 01-45 PM and finished at 02-45 PM on the same date. On the external
appearance a dead-body of male muslim,
young with average built wearing clothes dark green shirt and shalwar and white banian.
External injures were noted as under:-
1-A Lacerated
punctured wound 1 cm in diameter x abdominal cavity deep at left number region
margins inverted {wound of entrance}.
1-B Lacerated
wound 3 and half cm x one and half cm x chest cavity deep over right lateral
side of lower chest margins inverted injury is through and through wound of
exit.
On internal examination
of deceased he found, right lung, stomach, liver, small intestine and spleen
were damaged while pleurae and diaphragm lacerated at site of injury. From the external
as well as internal examination of deceased Sijawal son of Soomar, he is of the
opinion that death occurred due to shock and hemorrhage caused by discharge of
fire-arm. Injury No. l is ante mortem in nature and can cause death in ordinary
course of life. This witness was also cross-examined and confirmed that he
conducted the postmortem on the day of Eid-ul-Fiter. He
also confirmed during cross-examination that the injured Jageer has four
entrance wound and two exit wound on the body and the injuries sustained by the
injured Jageer were received at the distance of more than one meter. There was
no blackening and charring on the body of injured. He during cross-examination
also stated that “There were holes on the
clothes of deceased Sijawal. Deceased
Sijawal sustained only on injury, which he received at the distance of more
than one meter. There was no blackening and charring on dead body of deceased.”
During his cross-examination nothing favourable to appellant came on record for
extending any benefit.
17. I
have also considered the evidence of defence witnesses produced on behalf of
the appellant and found that those were cooked up witnesses. The appellant took
specific plea that he was not available at the place of incident at that time
and the complainant party attacked upon their houses in order to commit murder
of Mst. Meehan by declaring her Kari but the deceased and the injured Jageer
received firearm injuries from the firing of their companion. Mst. Meehan was
examined as defence witness but on careful perusal of her evidence it is
established that she has tried to save appellant party and gave false evidence
in their support. The said DW Mst. Meehan deposed that “On 04-11-2005, it was Eid-ul-Fiter day and our male members had gone to offer Eid prayer at Sui-Shareef and in
their absence at about 10-00-a.m accused persons namely Sijawal,
Jageer, Manzorr, Liaqat, Shoukat and Zameer having
K.Ks and pistols in their hands entered into our house to commit my murder on
the allegation of “Karap” and they started firing to
kill me but I saved myself inside the room and raised cries and due to firing
of above named persons Sijawal Kobhar and Jageer received the fire-arm injuries
from the hands of their own
companions.” Her evidence has no
support as such carries no any weight. On the other hand the prosecution has
proved its case that the incident took place near to house of one Hazaro and
not in the house of Mst. Meehan. The mashirnama of place of wardat also
reflects that the place of wardat is situated outside the house of Moriro and
not inside of any house as claimed by the said DW Mst. Meenhan. The evidence of
DW Muhammad Shahban is also not helpful to the
appellant as according to him firstly he came to know about the incident and
thereafter he went and inform such incident to the
appellant party at Sui-Shareef. He was not available
at Sui-Shareef with the appellant at the time of incident, therefore his evidence cannot be relied upon.
18. In
the present case there appear two eye witnesses of the incident including one
injured witness (Jageer) who received firearm injuries and the same are
supported by the medical evidence. They have fully supported the case against
the appellant by specifically deposing that the appellant Mushtaque had
directly fired upon the deceased Sijawal from KK which hit him and they both
were cross-examined at length but defence counsel could not succeeded in
getting favourable contradictions. In view of such fact the contentions of the learned counsel for the appellant that the witnesses are relative to
the deceased and are interested,
therefore, their evidence cannot be relied upon has no force as although the
witnesses are relatives of the deceased but they specifically narrated each and
every aspect of the incident, one of them namely Jageer received firearm injuries
from the hands of the accused persons thus the presence of
eye-witnesses at the time of incident had established beyond a reasonable doubt.
The Honourable Supreme Court in the case of NASIR IQBAL @ NASRA and
another V. The STATE (2016 S C M R 2152), has held as under:-
"In the above circumstances, we found that the ocular
evidence furnished by the eye-witnesses to be credit worthy and confidence
inspiring and we have not been able to observe any defect or material lacunas
in their evidence; their presence at the spot had been established beyond any
shadow of doubt; both the eye-witnesses were of course closely related
to the deceased but fact of the matter remains that their mere relationship
would not render them to be interested or partisan witnesses when the same has
been corroborated with the medical evidence as well as the recoveries of crime
weapon and the motive has fully been proved as such in our view no interference
is required in conviction of the appellants."
19. To believe or disbelieve a witness all
depends upon intrinsic value of the statement made by him. Even otherwise,
there cannot be a universal principle that in every case interested witness
shall be disbelieved or disinterested witness shall be believed. It all depends
upon the rule of prudence and reasonableness to hold that a particular witness
was present on the scene of crime and that he is making true statement. A person who is reported otherwise to be very honest, above the board
and very respectable in society if gives a statement which is illogical and
unbelievable, no prudent man despite his
nobility would accept such statement as has been held by the Honourable Supreme Court of Pakistan in case
of Abid Ali & 2 others v. The State (2011SCMR 208).
20. Another contention of learned counsel
for the appellant that crime weapon used by the appellant at the time of
offence was not recovered from him, therefore, the appellant cannot be
connected with the murder of deceased, has also no force in view of that, all
the prosecution witnesses supported the case of prosecution by deposing that
the appellant directly fired from his KK which hit the deceased and their
direct evidence is further corroborated by medical evidence as the doctor who
examined the deceased had found firearm injuries on the person of the deceased.
It is settled by now that where charge was proved by other direct, natural
and confidence inspiring evidence, then non-recovery of crime weapon is not
fatal to the prosecution case. Reliance is placed on the case of Sikander
Teghani alias Muhammad Bux Teghani V. The State (2016 Y
L R 1098).
21. Learned counsel for
the appellant though pointed out some minor contradictions in the evidence of
witnesses but the same are not sufficient to discard their evidence. Even in
the cases where some minor contradictions may available which are not
sufficient to create any serious doubt the same can be ignored which always are
available in each and every case, as has been held by Honourable Supreme Court
in case of Zakir Khan V. The State (1995 SCMR 1793), relevant
paragraph is reproduced as under:-
“13. The evidence recorded in the
case further indicates that all the prosecution witnesses have fully supported
each other on all material points. However, emphasis has been laid by Mr.
Motiani upon the improvements which can be found by him in their respective
statements made before the Court and some minor contradictions in their
evidence were also pointed out. A contradiction, unlike an omission, is an
inconsistency between the earlier version of a witness and his subsequent
version before the Court. The rule is now well established that only material
contradictions are to be taken into consideration by the Court while minor discrepancies
found in the evidence of witnesses, which generally occur, are to be
overlooked. There is also a tendency on the part of witnesses in this country
to overstate a fact or to make improvements in their depositions before the
Court. But a mere omission by witness to disclose a certain fact to the
Investigating Officer would not render his testimony unreliable unless the
improvement made by the witness while giving evidence before the Court has
sufficient probative force to bring home the guilt to the accused.”
22. Thus based on the
discussion made herein above and on the reassessment of entire evidence
produced by the prosecution, I am of the considered view that the prosecution
has proved its case beyond a reasonable doubt against the appellant by
producing reliable, trustworthy, and confidence-inspiring oral evidence as well
as medical evidence, so also the documentary evidence in support of the same.
I, therefore, uphold all the sentences, fines, and penalties for each offence
in the judgment whilst dismissing the appeal of the appellant.
JUDGE