IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Criminal Jail Appeal No. S-124 of 2017
Appellants: Ghulam Ali and
Muhammad Ramzan, through Mr. Sohail Ahmed Khoso, Advocate.
Complainant: Abdul Hafeez Kalhoro
through Mr. Ghulam Umar S.M. Rajput, advocate
The State: Through Mr.
Khalil Ahmed Maitlo
Deputy Prosecutor
General
Date of hearing: 20.12.2021.
Date of judgment: 11.03.2022.
J U D G M E N T
ZULFIQAR
ALI SANGI, J:- Through this criminal jail appeal, appellants Ghulam
Ali and Muhammad Ramzan have challenged the Judgment dated 29.08.2017, passed
by learned Additional Sessions Judge-IV Khairpur, in Sessions Case No.269/2011 re-“The State v. Ghulam Ali and others”, arising
out of Crime No.16/2011, registered at Police Station Gambat, under Section 302,
34 PPC, whereby the appellants were convicted u/s 265-H (2) Cr.P.C and sentenced for an
offence under Section 302(b) PPC to suffer R.I for life and to pay Rs.100,000/-
(one lac rupees) each as compensation under Section 544-A Cr.P.C to the legal
heirs of deceased, in case of default in payment of fine, they shall undergo SI
for six months more; however benefit under Section 382-B Cr.P.C was extended to
both accused persons.
2. Brief facts of
the prosecution case as per FIR lodged by complainant Abdul Hafeez Kalhoro are
that about 35/36 years back, father of accused Ghulam Ali Kalhoro namely Photal
Khan Kalhoro was murdered and such case was registered against his father
Koural Khan and others and after trial father of complainant Koural Khan was
acquitted. The father of complainant Koural Khan aged about 58/59 years was
serving as Govt Chowkidar in Middle School Kamal Dero. On the day of incident,
his father was ready to go on duty, he alongwith his father left the house and
proceeded towards Kamaldero by foot, it was about 1000 hours, when they reached
near Pir Jalil, suddenly four persons riding on two motorcycles, two persons on
each motorcycle came behind the complainant party, to whom complainant saw and
identified as 1.Ghulam Ali s/o Photal Khan Kalhoro, 2. Ramzan
s/o Muhammad Nawaz Kalhoro, 3. Naseem Ahmed and 4.
Deedar, both sons of Piral Kalhoro, resident of Jara Khooh.
Out of whom, accused Ghulam Ali while giving Hakal to the father of complainant
that he alongwith other accused had committed murder of his father Photal Khan,
hence, today they would not spare them. Saying so accused Ghulam Ali made
direct fire of pistol upon Koural Khan, which hit him on the right side of
chest, accused Ramzan Kalhoro also made direct fire of pistol upon Koural Khan,
which hit him on upper back side, accused Naseem Kalhoro also made two fires
from his pistol upon Koural Khan which with hit him on lower back side. Koural
Khan after receiving firearm injuries fell-down on the road and accused Deedar
also made direct fire of pistol upon Koural Khan, which hit him on his left leg
knee. Meanwhile, uncles of complainant namely Muhammad Mithal and Wazir Ali,
both sons of Muhammad Talib came there by motorcycles, who
also saw and identified the accused persons and raised cries on which accused
persons ran away from scene of offence on motorcycle while raising slogans
towards Kamaldero. Then complainant narrated such facts to the witnesses and
thereafter they went and saw that his father Koural Khan had sustained two fire
injuries on the right side of chest, which was through & through. Two
firearm injuries on the back side, which was through and through, two firearm
injuries on the lower side back, which was
through & through, one firearm injury on his left leg, which was through
& through, there was bleeding and within the sight of
complainant party, he died. Thereafter, complainant left PWs over dead body to
look-after, appeared at PS and lodged FIR, alleging
therein that accused Ghulam Ali Kalhoro in collusion with above-named accused
persons, duly armed with weapons due to above annoyance, made direct fire of
pistols upon his father Koural Khan and committed his murder.
3. After usual investigation charge
sheet was submitted before the court of law having jurisdiction. Proceedings
U/S 87/88 Cr.P.C were initiated and completed against
absconders accused Muhammad Ramzan, Naseem and Deedar thereafter they were
declared as proclaimed offenders.
4. After
completing the formalities charge against accused Ghulam Ali was framed and
some of the prosecution witnesses were examined and then co-accused Muhammad
Ramzan was arrested and charge was amended against them at Ex.11 to which they
pleaded not guilty and claimed trial vide pleas recorded at Ex.12 and Ex.13.
5. After amendment of the charge
all the witnesses were re-examined. Complainant Abdul Hafeez was examined
at Ex.14. P.W Wazir Ali was examined at Ex.15. P.W Muhammad Mithal was examined
at Ex.16. Mashir Nazir was examined at Ex.17, who produced danistnama report at
Ex.17/A, memo of inspection of place of incident at Ex.17/B, memo of recovery
of last worn clothes of deceased at Ex.17/C. Investigating Officer Zafarullah Bajwa was examined at Ex.18, who
produced a permission letter at Ex.18/A, departure as-well-as arrival entries
at Ex.18/B, permission letter from SPP at Ex.18/C and chemical examiner report
at Ex. 18/D. Inspector/SIO Muhammad Ameen Pathan was examined at Ex.19. PC
Muhammad Hassan was examined at Ex.20. SIP Ghulam Rasool was examined at Ex.21.
Ghulam Abbas Tapedar was examined at Ex.22. PC Mushtaque Hussain was examined at
Ex.23, who produced memo of arrest of accused Ghulam Ali at Ex.23/A. ASI
Muhammad Aves was examined at Ex.24. Thereafter, learned prosecutor for the
State filed application for calling well conversant with signature of late Dr.
Maqsood Ahmed at Ex.25 which was allowed
vide order dated 11.11.2016. ASI Amanaullah Maitlo was examined at Ex.26, who
produced memo of arrest of accused Muhammad Ramzan at Ex.26/IA. Learned
advocate for accused filed application U/S 540 Cr.P.C to recall the complainant
and eyewitness for cross-examination at Ex.27 but same application was
dismissed on merits vide order dated 03.12.2016. Dr. Abdul Jaleel was examined at
Ex.28, who produced postmortem report of deceased Koural Khan Kalhoro at
Ex.28/A. PW PC Deedar Ali was examined at Ex.29.Thereafter, learned prosecutor
for the State closed side of prosecution vide statement at Ex.30.
6. Statements of
accused U/S 342 Cr.P.C were recorded at Ex.31 and Ex.32 wherein they denied the
allegations leveled against them. Accused neither led evidence in their defence
nor examined themselves on oath but they only prayed
for justice.
7. Learned counsel for the
appellants 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 of the prosecution case;
besides complainant has given contradictory statement with the statements of
PWs; that Complainant in order to usurp land has managed false story as his
brother/co-accused Ghulam Mustafa @ Mushtaque had paid Rs.300,000/- for
purchasing the said land being co-sharer; that inspite of easy availability of
independent persons at the place of incident not a single witness is associated
as witness to corroborate the version of Complainant, therefore in presence of
enmity between the parties, the testimony of complainant and PWs, is fatal to
the prosecution case; that ocular version suffers from improvements and not in
line with medical evidence; that complainant and PWs are relatives and
interested, therefore their evidence cannot be believed; besides there are many
lacunas and contradictions in the evidence of PWs; that the impugned Judgment
is against the law, facts, principles of natural justice and equity; that
learned trial court has erred in convicting the appellants 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
appellants may be acquitted.
8. Learned DPG appearing for the state has supported the
impugned judgment and further contended that the prosecution has proved its
case against the appellants beyond any reasonable shadow of doubt by producing
oral as well as documentary evidence; that the learned trial court has rightly
convicted the appellants and they do 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.
9. I have heard learned counsel for the parties and
have gone through the material available on record with their able assistance.
10. The evidence produced by the prosecution in the shape of ocular
evidence and medical evidence coupled with documentary evidence, including
Postmortem report of the deceased, established beyond any shadow of reasonable
doubt that on 17-01-2011 at about 1000 hours near Pir Jaleel Shah, at link road
leading from Kandiyaro towards bypass deh Kamaldero, deceased Koural Khan
received firearm injuries on his person and was died due to un-natural death at
the spot. Prosecution in order to prove the death of deceased as un-natural
examined Dr. Abdul Jalil as
PW-13 who deposed that he was SMO RHC Agra and he know Dr. Maqsood Ahmed
Memon who had served with him at BHU Khuhra in the year 2011.
The said Dr. Maqsood Ahmed Memon has expired away in the year 2012, he confirmed
the signature of Dr. Maqsood Ahmed Memon on the post mortem report of deceased
Kouro Khan Kalhoro available at Ex.28/A. The post mortem report is scanned and
found the following injuries:-
(1) Two fire arm injuries on back of chest
(entrance) 1 c.m of each through and through over from left side and other on
Rt.
(2) Two fire arm injuries with on front of
chest 2 cm diameter of each continuation of injury No.1 are from left side and
other on Rt. Side.
(3). Two fire arm injuries on back of abdomen
1 cm in d.m through and through one from
left side and other from Rt. Side.
(4)
Two fire arm injuries on front of abdomen 2 cm d.m. continuation of injury No.3
one from left and other from Rt. Side.
(5)
Two fire arm injuries on Rt. Side front of chest (d.m 1) through and through.
(6) Two firearm injuries on Rt side 2cm d.m continuation of injury No.5.
(7) One fire arm injury (entrance) on nuchal side of lowery
(left) size 1 c.m d.m through and through.
(8) One fire arm injury (evil) 2 cm d.m on
lateral side of lower leg continuation of injury No.7.
11. To prove the ocular
account, the prosecution has examined complainant namely Abdul Hafeez as PW-1
(Eye-witness), who deposed that about 30/35 years back father of accused Ghulam
Ali namely Photal Khan was murdered. The murder case of father of accused was
registered against his father Koural Khan and other persons. His father Koural
Khan was acquitted from that case. His father was Govt. Servant and was posted
as Chowkidar at Govt. Middle School Kamaldero. He was aged about 58/59 years at
the time of incident. On 17.1.2011 he alongwith his father were going from
their village Kamaldero, as soon as they arrived at Pir Jaleel Chowk, it was
about 10.00 am, they noticed four accused on two motorcycles came there. The
accused Ghulam Ali and Mohammad Ramzan were on one motorcycle and accused
Naseem and Deedar were on another motorcycle. All accused are by caste Kalhoro
and they took out pistols from their folds. Accused Ghulam Ali asked his father
that about 30/35 years back he had committed murder of his father,
hence he will not be spared. Accused Ghulam Ali directly made two fires with
pistol which hit to his father on chest from right side. Accused M. Ramzan also
made two fires from his pistol upon his father which hit him on his back on
upper side. Accused Naseem also made two fires from his pistol which hit to his
father on below side on back. His father fell down on the road. Accused Deedar
also made one fire upon his father, which hit him on his left leg. All the
accused fired upon his father with intention to commit his murder. In the
meantime his uncles namely M. Mithal and Wazir Ali came on Motorcycle. He had
raised cries and his uncles gave hakals. After that all the
accused went away towards Kamaldero after raising slogans on their motorcycles.
His father had sustained injuries at chest which were found through and through
and blood was oozing. They had also found two fires on uppers side of back and
blood was oozing from those injuries. He also found two fires at the lower side
of the back and blood was oozing. They also noticed one fire on left leg of his
father from which blood was also oozing. His father succumbed to the injuries
and passed away at the spot. He left his both uncles at the dead body and
himself went to police station Gambat on Motorcycle and lodged FIR against
accused. On the very same day, he had shown the place of wardat to the Police.
The dead body was also shifted to the hospital for the purpose of Post Mortem.
After completion of Post Mortem, the dead body was given to him under the
proper receipt. This witness was cross-examined and during cross-examination
stated that no other person were available at place of incident. He further
stated in his cross-examination that “It
is fact that I was with my father but during incident I had not received any
injury. It is fact that I had not resisted with the accused. It is incorrect to
suggest that we had any relationship with accused Ghulam Ali. It is incorrect
to suggest that other cases were pending in the Courts in between us and
accused Ghulam Ali at the time of incident.” During cross-examination
suggestion was made to complainant that his father was murdered by the peoples
of Siyal community. The evidence of this witness is carefully examined but nothing
favourable to appellants is found.
12. The
prosecution examined Wazir Ali as PW-2, (Eye-witness), who deposed that the
complainant Abdul Hafeez is his nephew. On 17.1.2011 he alongwith his brother
Mohammad Mithal left their village on Motorcycle. They arrived near Pir Jaleel
it was about 10.00 am where they noticed that complainant Abdul Hafeez
alongwith his brother Koural were present there. They saw that four accused
namely Ghulam Ali, Ramzan, Naseem and Deedar came on two motorcycles. All the
accused took out pistols and accused Ghulam Ali gave Hakal to his brother
Koural that he had committed murder of his father about 30/35 years back hence
he will not be spared. Accused Ghulam Ali made two fire shots upon his brother
which hit him on right side of chest with intention to commit his murder, accused
Ramzan made two fires upon upper side of back which hit him with intention to
commit his murder. Accused Naseem made two fires on below side of back with
intention to commit his murder. Accused Deedar made one fire upon his brother
Koural which hit him on left leg. Accused then went away
while raising slogans towards Kamaldero on their motorcycles. The complainant
left them at the dead body and then he went to PS Gambat for registration of
FIR. Later-on complainant came back alongwith Police of PS Gambat. The dead
body was also shifted to the hospital and after post mortem the same was handed
over to Complainant. This witness was cross-examined at length, he admitted
relationship with the other witnesses and also admitted enmity of deceased with
the accused persons and same has also been admitted by the complainant in the
FIR, no material contradiction in his evidence is noticed which favours the
appellants.
13. The
prosecution examined third witness (Eye-witness) namely Muhammad Mithal as
PW-3, who deposed that complainant Abdul Hafeez is his nephew. On 17.1.2011 he
alongwith his brother Wazir Ali left their village at about 9.45 am on a
motorcycle for Gambat with some house hold work. They arrived near Pir Jaleel
where saw and identified accused Ghulam Ali, Ramzan, Naseem and Deedar. Accused
Ghulam Ali fired two shots from mouser upon his brother which hit him at his
chest, accused Ramzan made two fires from his mouser upon his brother on upper
side of back. Accused Naseem made two fires which hit his brother Koural on
lower side of back. Accused Deedar made one fire which hit to his brother
Koural on his left leg. He had fallen down on the ground. All the four accused
went away on their motorcycles towards Kamaldero. His brother had succumbed to
the injuries and passed at the spot. The Complainant had left them over dead
body and went to PS Gambat on his motorcycle to lodge the report. The
complainant and police came at place of incident. His statement was also
recorded by the Police. This witness was also cross-examined at some length in
which he admitted the enmity and relationship with the deceased. No contradiction or discrepancy is seen in
his evidence which favours the appellants.
14. After
the evidence of eye-witnesses (ocular account) the prosecution examined mashir
namely Nazeer as PW-4 who deposed that on 17.1.2011, he was present in his
house situated in village Jarra Khooh. He came to know via Mobile phone that
his brother Koural Khan was murdered by Ghulam Ali, Deedar, Ramzan and Naseem.
On receipt of such information, he alongwith his nephew Abid Ali came to the
place of incident which was situated near Pir Jaleel. Later-on his nephew
namely Abdul Hafeez came alongwith Police. The dead
body of his brother was lying on the ground. His head was lying towards
northern side, feet towards western side. He was wearing light green Shalwar
and Qameez and he was also wearing a jacket. SIP Zafarullah Bajwa had noticed
in their presence that deceased was having two fire arm injuries at his chest
from right side. He was also having two fire arm injuries on upper side of back
and same were through and through, he was also having two fire arm injuries on
lower side of back same were through and through, he
was having one fire arm injury on left leg. The blood was oozing from the
injuries. The blood stained earth was taken by the SIP Zafarullah Bajwa. From
the northern side of dead body SIP Zafarullah Bajwa secured 4 empties of TT
pistols and he also secured 03 empties of TT pistols from southern side of dead
body at the distance of 3/4 paces. In the southern there was road leading to
village Kamaldero, in the north there was road leading to Pir Jaleel, in east
there was land of Syed Sabit Ali Shah in which wheat crop was available. In the
west there was land of Hameer Shaikh and land of Iqbal Tanwar. The complainant
shoed foot prints and wheel marks of motorcycles of the accused. Firstly
Danistnama was prepared and their signatures were obtained. The memo of place
of wardat was also prepared in their presence. The separate memo of securing
last worn clothes and collecting blood stained earth was also prepared in their
presence. The dead body was sent to hospital for the post mortem and they came
to their village for making arrangements of funeral. This witness was
cross-examined in which he admitted enmity with the appellants and the relationship
with the deceased. However, no material contradiction or discrepancy is seen in
his evidence which favours the appellants.
15. The
prosecution also examined the investigation officer namely Zafarullah Bajwa as
PW-5 who deposed that on 17.1.2011 he was posted as SIO at PS Gambat, on the
same day he had received copy of FIR of this case bearing crime No.16/2011 u/s
302 PPC from ASI Ghulam Rasool Langah for further investigation. On the same
day he had left PS vide entry No.18 at 1840 hours in order to inspect wardat.
They came at place of wardat where dead body of deceased Koural Kalhoro was
lying. He had also collected blood stained earth and 07 empties of TT pistol. He
had inspected dead body and found four fire arm injuries from front side, two
were through and through on chest and two fire arm injuries from back side and
one fire arm injury on his left leg at knee in all 07 seven fire arm injuries.
He had prepared such inquest report in presence of mashirs Nazir Ahmed and
Abid. He had also prepared memo of wardat and examination of dead body in
presence of same mashirs and dispatched the dead body of deceased for post
mortem through PC Muhammad Hassan from concerned hospital. He had recorded
statements witnesses of FIR namely Wazir Ali and Muhammad Mithal u/s 161
Cr.P.C. They came back at PS vide entry No.27, on the very same day PC Muhammad
Hassan Jamro produced before him the last worn clothes of deceased and he had prepared
such memo in presence of same mashirs at 1700 hours and so also sealed the
same. He had also issued letter to Mukhtiarkar Gambat for issuance of sketch
through concerned Tapedar and issued letter to the SSP for obtaining permission
to send the blood stained earth and empties to the Chemical Examiner. He also
received report from chemical then on transfer handed over the papers to
inspector Muhammad Amin Pathan for further investigation. He was cross-examined
by the defence counsel and during cross-examination he stated that he had
noticed foot prints of four persons at place of wardat and wheel marks of two
motorcycles. The dead body was lying in straight position. The blood was fresh
available on wardat. He denied the suggestions in respect of enmity in between
the parties for want of knowledge. His evidence is scanned carefully and has not
found any thing favourable to the appellants.
16. The
prosecution examined investigation officer Muhammad Amin Pathan as PW-6 who
deposed that on 21.1.2011 he was posted SIO PS Gambat,
on the very same day he had received case papers from SIO Zafarullah Bajwa who
had conducted entire investigation. He had gone through the papers and found
that complete investigation was done. He tried to arrest the accused but could
not succeed; he had submitted challan against accused u/s 512 Cr.P.C. This
witness was not cross-examined by the defence counsel.
17. The
prosecution also examined Muhammad Hashim as PW-7 who deposed that on 17.12011
he was posted as PC at PS Gambat. On the same day he had received letter of SIO
Zafarullah Bajwa for post mortem of deceased Mohammad Koural from BHU Khuhra.
He had brought the dead body to the said hospital and after conducting post
mortem of deceased he had delivered the dead body of deceased to the heirs of
deceased on receipt. He had also deposited the last worn clothes of deceased to
the SIO. His cross-examination is scanned but found nothing favourable to
appellants.
18. The
prosecution also examined Ghulam Rasool as PW-8 who deposed that on 17.1.2011
he was posted as SIP at PS Gambat and was duty officer. On the very same day
complainant Abdul Hafeez Kalhoro appeared before him and narrated the facts of
cognizable offence, hence he recorded his FIR as per his verbatim. After reading
over its contents obtained signature from the complainant. After that he had
handed over the same FIR to SIP Zafarullah Bajwa for further investigation. He
was cross-examined and during cross-examination he stated that complainant
appeared before him at 11.00 am at PS, he was available as duty officer at PS.
First of all he had incorporated information of complainant in 154 Cr.P.C.
Complainant came alone at PS. The distance between PS and place of wardat was
about 14/15 kms. The said distance can be covered within half an hour.
19. The
prosecution also examined Ghulam Abbas as PW-9 who is Tapedar of the beat and
had prepared sketch of the place of wardat and exhibited the same before the
trial court. During his cross-examination nothing favourable to appellants came
on record.
20. The
prosecution examined Mushtaque Hussain as PW-10 who deposed that on 10.6.2011
he was posted as Police Constable at PP Khuhra PS Gambat. On the same day he
along with ASI Muhammad Aves Lashari and PC Suhail Asghar were available at PS
where ASI received spy information that accused Ghulam Ali wanted in this case is
available at Link Road Gambat Khuhra. On that information they rushed and
arrested him at 1100 hours. Such memo of arrest was prepared by ASI in his
presence and in presence of co-mashir PC Suhail, after that they came back at
PS. During cross-examination he stated that information was received by M.
Aslam Lashari. No private person was available at the place of arrest. The
accused was caught hold jointly. The person of accused was searched jointly.
Nothing was recovered from his possession at that time.
21. The
prosecution examined Muhammad Aves as PW-11 who deposed that on 10.6.011 he was
posted as ASI and incharge PP Khuhra under PS Gambat. On the very same day he
had received spy information at PP that wanted accused Ghulam Ali S/O Photo
Kalhoro in crime No.16/2011 u/s 302 PPC PS Gambat and Crime No.19/2011 U/S 324
PPC PS Gambat is available at Gambat Khuhra link road Ad-Kassi. On that
information, he alongwith his staff namely PC Mushtaque, PC Suhail left PP at
1050 hours, and rushed to the pointed place at 1100 hours where they noticed
accused Ghulam Ali and he while noticing police party tried to run away but was
apprehended on spot. During search nothing was recovered from his possession.
Due to non-availability of private person, PC Mushtaque and PC Suhail were set
as mashirs, such memo was prepared in presence of mashirs; Thereafter they came
at PS and handed over custody of accused to investigation officer. During the
cross-examination he stated that the complainant of case was at considerable
distance, hence he was not called after receipt of information of availability
of accused.
22. The
prosecution also examined Amanullah as PW-12 who deposed that on 25-11-2014; he
was posted as ASI at PS Baharo. On the very same day he alongwith his staff PC
Deedar Ali, PC Nawab, left PS on police vehicle with DPC Muneer Ahmed vide
entry No.3 at 1000 hours for patrolling of the area. After patrolling from
different places when they reached at Faiz Wah Bridge on link road Khuhra to
Baharo one person was coming, who while noticing police party tried to run
away. They stopped vehicle and apprehended him. On enquiry he disclosed his
name as Muhammad Ramzan S/O Mohammad Nawaz Kalhoro R/O Jara Khooh. He was
wanted in cases crime Nos.16, 19, and 80 of 2011 of PS Gambat. During his
personal search nothing was secured. He prepared such memo in presence of
mashirs PC Deedar Ali and PC Nawabuddin Khokhar, it was 1230 hours. Thereafter they
came back at PS alongwith accused. He was cross-examined but nothing favourable
to appellants was brought on record by the defence counsel.
23. The
prosecution in the last examined Deedar Ali as PW-14 who deposed that on
25.11.2014 he was posted at PS Baharo, on the same day he along with ASI
Amanullah, PC Nawabuddin Khokhar left PS for patrolling in the area on police
vehicle with DPC Muneer Ahmed vide entry No.03 at 1000
hours. After patrolling from places when they arrive at Faiz Wah Pull they saw
one person who while noticing police tried to run away but he was apprehended.
On enquiry, he disclosed his name as Ghulam Ali Kalhoro s/o Muhammad Nawaz; he
was wanted in Crime No.16/2011 .Due to non-availability of private persons, he
and PC Nawabuddin were made mashirs. Such memo was prepared in their presence.
This witness was not cross-examined, therefore his evidence went unchallenged.
24. Record
reflects that FIR of the present case was
registered promptly. Incident took place on 17-01-2011 at 1000 hours, FIR was
registered on the same day at 1100 hours and the postmortem of the deceased was
conducted at 1-45 pm on 17-01-2011, which
excludes the possibility of consultation or deliberation on the part of the
prosecution. It is also established from the evidence of the
witnesses that after the incident complainant immediately went to the police
station by leaving other two witnesses at the dead body, and after the FIR
police along with the complainant came at the place of vardat wherefrom police
referred the dead body to hospital for postmortem. The complainant gave full
particulars of the incident to the police. Honourable Supreme
Court in case of FARMAN ALI and
another v. The State and
another (2020 S C M R 597), has
held as under:-
4.
We have heard the learned counsel for the petitioner Farman Ali in Criminal
Petition No.29-P/2012, and also perused the whole record in Jail Petition
No.76/2012, preferred by Amjad Ali co-convict of Farman Ali and observed that
in this case the occurrence took place at about 5.15 p.m. The Police after
coming to know about the occurrence arrived in the Emergency Department of the
Hospital where Muhammad Askar Khan, Complainant/PW-1, reported the matter. The
postmortem was conducted on the same day after about one hour of the
occurrence. In the FIR, it is specifically mentioned that the petitioners
Farman Ali and Amjad Ali along with Malik Alam (P.O.) fired at the deceased
Muhammad Ajmal Khan. Due to their firing, the deceased received fire shots and
succumbed to the injures. The names of the
eye-witnesses have specifically been mentioned in the FIR. In this
case, the matter was promptly reported to the police and the postmortem was
also conducted promptly, which exclude the possibility of consultation or deliberation
on the part of the prosecution.
25. The contentions raised by the learned counsel for
the appellants that the witnesses are relatives of complainant and interested,
therefore, their evidence cannot be relied upon, has no force as although the
witnesses are relatives of the complainant but they have specific motive
against the appellants. In the present case three eyewitnesses have
categorically deposed against the appellants and no material contradiction is
found in their evidence. The evidence produced by the prosecution is reliable,
trustworthy and confidence inspiring which was supported by the medical
evidence as discussed above. In the case of NASIR
IQBAL @ NASRA and another V. The STATE (2016 S C M R 2152)
Honourable Supreme Court 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."
26. As regards to the contention of learned counsel for the appellants
that at the time of arrest and during the investigation of the case crime
weapons allegedly used by the appellants at the time of offence were not
recovered, therefore, the appellants cannot be connected with the alleged murder
of the deceased, has also no force in view of the fact that all the prosecution
witnesses supported the case of prosecution by deposing that the appellants
along with other co-accused directly fired from the weapons which hit the
deceased and their direct evidence is further corroborated by medical evidence
as the doctor who examined the deceased had found several firearm injuries as
discussed above, further corroborated by the recovery of the empties from the
place of vardat. It is settled by now that where charge is proved by other
direct, natural and confidence inspiring evidence, then non-recovery of crime
weapon alone 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).
27. The contentions of
defence counsel that there is an admitted enmity in between the complainant
party and the appellant’s party, therefore, false implication cannot be ruled
out, too has no force as the present incident took place in daytime wherein
three eye-witnesses have fully supported the case on each and every point. The motive is always a double-edged weapon. No doubt, previous
enmity can be a reason for the appellants to commit the alleged crime, but it
can equally be a reason for the complainant side to falsely implicate the
appellants in the case for previous grudge. However on careful scrutiny of the
evidence produced by the prosecution it established that the prosecution has
proved its case against the appellants beyond a reasonable doubt by producing
reliable, trustworthy and confidence inspiring evidence. The appellant though
availed the chance of cross-examination to the witnesses but they failed to
bring on record any material contradiction in their evidence. In the circumstances
and on the basis of above discussion the prosecution also established beyond a
reasonable doubt the motive against the appellants for committing murder of the
father of the complainant.
28.
Learned counsel for the appellants pointed out some contradictions in the
evidence which in my view are not sufficient to hold the case of prosecution as
doubtful. It is settled by now that, where in the evidence, prosecution
established its case beyond a reasonable doubt then if there may some minor
contradictions which always are available in each and every case as no one can
give evidence like photograph such may be ignored, 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.”
29. Thus based on the discussion made hereinabove 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 appellants 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 the offence in the judgment whilst
dismissing the appeal of the appellants.
J
U D G E