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 s
ight 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