IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA.
(1) Crl. Jail Appeal No.S-26 of 2020
Appellants : (1) Ali Gul Wako (2) Shah Muhammad @
Shahan, through Mr. Imdad Ali Tunio Advocte.
Respondent : The State, through Mr. Ali Anwar Kandhro,
Additional Prosecutor General.
Complainant : Muhammad Azeem, through Mr. Mushtaque
Ali M. Chandio Advocate.
------------
(2) Crl. Jail Appeal No.S-27 of 2020
Appellant : Ali Gul Wako, through Mr. Imdad Ali Tunio
Advocte.
Respondent : The State, through Mr. Ali Anwar Kandhro,
Additional Prosecutor General.
Date of hearing : 03.07.2023.
Date of Judgment : 03.07.2023.
J U D G M E N T.
AMJAD ALI SAHITO, J.- This judgment carries disposal of the captioned Criminal Jail Appeals preferred by the present appellants/accused Ali Gul and Shah Mohammad alias Shahan, both by caste Wako, assailing the judgment dated 25.02.2020 passed by learned Additional Sessions Judge-I/MCTC, Dadu in Sessions Case No.315/2018 (Re-The State Vs. Ali Gul & another), emanating from FIR bearing Crime No.136/2018 registered with P.S. Mehar, for offence punishable U/S. 302, 337-H(2), 337-L(2), 504, 148, 149, PPC, whereby they have been convicted for offence u/s 302, PPC r/w section 149, PPC and sentenced to suffer R.I. for life as Tazir, and to pay compensation of Rs.200,000/- each to the legal heirs of deceased; in default thereof to suffer S.I. for six months more; the appellants have further been convicted u/s 148 r/w section 149, PPC and sentenced to suffer R.I. for 02 years; the appellants have also been convicted u/s 337-L(2) r/w section 149, PPC to pay daman to the tune of Rs.1000/- each to injured Mohammad Azeem; the appellants have further been convicted u/s 337-H(2) r/w section 149, PPC and directed to pay fine of Rs.10,000/-; in default thereof to suffer S.I. for one month; all these sentences were ordered to run concurrently and benefit of section 382-B, Cr.P.C. was extended to the appellants.
2. Criminal Jail Appeal No.S-27 is outcome of offshoot case relating to recovery of crime weapon. Appellant Ali Gul Wako was tried in Sessions Case No.211/2018 based on Crime No.138/2018 of P.S Mehar, u/s 25, Sindh Arms Act, 2013; On the conclusion of trial, the learned Additional Sessions Judge-I/MCTC, Dadu vide separate judgment dated 25.02.2020 convicted the appellant for offence u/s 25 of Sindh Arms Act, 2013 and sentenced him to suffer R.I. for five years and to pay fine of Rs.50,000/-; in default thereof to suffer S.I. for three months more.
3. Briefly stated the facts of the case as depicted in the FIR No.136/2018 lodged with P.S Mehar on 10.05.2018, at 1500 hours, by complainant Mohammad Azeem Wako, are that about one year ago his brother Manthar Ali had contracted court marriage with the girl namely Mst. Imamzadi alias Patashi, belonging to party of Khadim Hussain Wako and others, on which Khadim Hussain and others were annoyed and used to issue threats to them. On 09.05.2018, complainant was working at his shop, where his brothers Mohammad Ali alias Imdad Ali, Waheed Ali and uncle Mohammad Hashim came and they were chitchatting; meanwhile, two motorcycles came and parked in front of his shop; it was about 3.30 p.m. time, Khadim Hussain and Madad Ali were armed with Pistol, who were on China Motorcycle of red colour along with one unidentified accused, while accused Ali Gul and Shahan, both armed with Pistols, were on red colour CD-70 motorcycle. Out of them, unknown accused stood near motorcycles, while remaining accused entered into the shop, abused the complainant party and accused Khadim Hussain said to his brother Mohammad Ali alias Imdad Ali that his brother Manthar Ali had contracted court marriage with their girl and today they will not spare him, on which Mohammad Ali alias Imdad Ali asked him not to abuse as we have given faisla to them; meanwhile, accused Ali Gul fired with his pistol at Mohammad Ali alias Imdad Ali with the intention of qatl-i-amd, which hit him on right side of chest above the nipple, who fell down raising cry, while remaining accused caused butts blows to the complainant. On their cries, nearby persons came and on seeing them, accused persons went out of the shop while making aerial firing and went away by boarding on motorcycles. Complainant saw that Mohammad Ali alias Imdad Ali was seriously injured and blood was oozing from his injury, they brought him at Taluka Hospital Mehar, who succumbed to the injuries and complainant informed to police, where police came, completed legal proceedings and after the postmortem the dead body was handed over to them. After funeral and burial of dead body, complainant lodged the FIR.
4. On 10.05.2018 both the appellants/accused were arrested in the present crime and during interrogation they became ready to produce the crime weapons i.e. pistols used in the said crime and ASI Ali Akbar along with accused, his subordinates and mashirs Nadir Ali and Niaz Hussain accompanied the accused to the northern side bank of Bundo Shakh, where the accused took out pistols from the bushes of Dubh. The accused failed to produce licenses, hence the pistols were sealed separately under memo. Thereafter, separate FIRs were registered against the accused.
5. On completion of usual investigation, the police submitted final reports under section 173, Cr.P.C showing accused Ali Gul and Shah Mohammad alias Shahan in custody before the Court learned Judicial Magistrate. Thereafter, the cases on being sent up before the Court of learned Sessions Judge, Dadu were then made over to learned trial Court where in the main murder case the absconding accused after observance of codal formalities were declared as proclaimed offenders. The papers were supplied to the appellants/accused under receipts.
6. The charge against the appellants/accused was framed at Exh. 6, to which they pleaded not guilty and claimed trial.
7. The prosecution in order to establish the accusation against the present appellants/accused in the main murder case, examined PW-1 tapedar Faheem Ahmed Mahessar at Exh.10, who produced police letter and sketch at Exh.10/A and 10/B, PW-2 complainant Mohammad Azeem at Exh.11, who produced FIR at Exh.11/A, PW-3 Waheed Ali at Exh.12, PW-4 Dr. Sikandar Ali Bhand at Exh.13, who produced police letter for injured, carbon copy of referral letter, Provisional MLC of injured, police letter of Police Surgeon along with X-ray report and final MLC of injured at Exh.13/A to Exh.13/E, as well as police letter for postmortem and postmortem report at Ex.13/F and 13/G, PW-5 mashir Nadir Ali at Exh.14, who produced memo of injuries of injured, memo of dead body, Danistnama, memo of place of incident, memo of clothes, memo of arrest of accused and memo of recovery at Exh.14/A to Exh.14/G, PW-6 Investigation officer Ali Akbar at Exh.15, who produced entry No.11, entry No.19, entries No.15 and 20 jointly, entries No.14 and 15 jointly, receipt of receiving dead body along with cloths, receipt of handing over dead body to Lakhedino, chemical examiner report and FSL report at Exh.15/A to Exh.15/H. Thereafter, learned ADPP closed side of prosecution vide statement kept on record at Exh.16.
8. In the offshoot case, the prosecution examined PW-1 complainant ASI Ali Akbar Chandio and PW-2 mashir Nadir Ali, who produced the relevant documents. The appellant/accused Ali Gul in his statement recorded in terms of Section 342, Cr.P.C. denied the allegations leveled against him by pleading his innocence, and stated that the recovery has been foisted against him at the behest of complainant party of main murder case. However, he neither examined himself on oath in disproof of the charge, nor led any evidence in his defence. The learned trial Court after appraisal of the material and hearing counsel for the parties convicted and sentenced the appellants Ali Gul and Shah Mohammad @ Shahan in the main murder case as well as appellant Ali Gul in the offshoot case, as discussed above.
9. Per learned defence Counsel, the present appellants have been arraigned in this case falsely on account of matrimonial dispute; that motive behind the murder was false and the same was not proved; that all the eye-witnesses are related to complainant and the deceased, and no independent person was cited as witness; that the mashirs of all the proceedings, who are residents of different villages, are same; that there are material contradictions in the evidence of prosecution witnesses which have shattered the veracity of their evidence; that there is conflict in ocular as well as medical evidence; that no any independent piece of evidence has been collected by I.O. during the course of investigation which may connect the present appellants with the commission of the offence; that the learned trial Court has not considered the contradictory pieces of evidence came out from the mouth of prosecution witnesses showing false involvement of the present appellants in this case; that the recovery of crime weapons has been foisted against them. In these circumstances, the prosecution has miserably failed to prove the charge against the present appellants beyond the shadow of reasonable doubt and thus prayed for acquittal of the appellants in the circumstances of the case.
10. On the other hand, learned Addl. P.G., assisted by Mr.Mushtaque Ali M. Chandio, learned Counsel for the complainant of main murder case, while supporting the impugned judgments have contended that the learned trial Court has rightly convicted and sentenced the present appellants/accused in accordance with law and as such they deserve no leniency. He lastly prayed for dismissal of these Criminal Jail Appeals. However, they both unanimously conceded that no active role in the commission of alleged offence was attributed to appellant/accused Shah Mohammad alias Shahan.
11. I have given due consideration to the arguments advanced by learned counsel for the parties and have minutely perused the material made available on record.
12. The deeper assessment of the material brought on record is entailing that the case of the prosecution is based upon ocular, medical and circumstantial accounts. Complainant/PW-2Azeem Wako supported the averments made by him in his FIR and deposed that his brother Manthar Ali had contracted court marriage with Mst. Imamzadi d/o Gul Hassan about one year prior to this incident, on which Khadim Hussain and others were annoyed and used to issue threats of dire consequences. On 09.05.2018, at about 3.00 p.m., he was working at his shop, where his brothers Mohammad Ali alias Imdad Ali, Waheed Ali and uncle Mohammad Hashim were chitchatting with each other, meanwhile at 3.30 p.m. they saw five persons came on two motorcycles, who were Khadim son of Roshan Ali, Madad Ali son of Mohammad Juman, one unidentified person, Ali Gul son of Haider and Shah Mohammad alias Shahan, all by caste Wako. Out of them, four accused persons came inside the shop, while unidentified person stood outside of the shop. Khadim stated to his brother Mohammad Ali that his brother has contracted love marriage, hence he would be killed and not spared. Thereafter, accused Ali Gul made straight fire from pistol upon his brother Mohammad Ali, which hit at right side of chest above the nipple, communicating through and through from back and while raising cry his brother fell down and accused Ali Gul, Shah Mohammad, Khadim Hussain and Madad caused butt blows of pistol to him(complainant). On their cries, other persons from surrounding came. Ali Gul and Shah Mohammad made one fire each and by firing went towards southern side, while accused Khadim, Madad and unidentified accused by firing went towards western side. They saw that blood was oozing from the injuries of his brother. Complainant and his brother arranged rickshaw and brought his brother at Taluka Hospital, Mehar, who succumbed to the injuries at the hospital and complainant informed to police, police came at the hospital and conducted the proceedings, and after the postmortem, complainant with ASI, three constables and mashirs went to the place of incident and he showed them the place of incident. Inside the shop ASI collected blood stained earth and also secured two empties of 30 bore Pistol and out of the shop secured three empties of 30 bore and such memo was prepared at about 5.00 p.m. Thereafter, they returned back at hospital, the dead body was received by complainant’s cousin Lakhedino which they brought at village and after funeral and burial on the next day he lodged the FIR (Ex.11/A)
13. In cross-examination the complainant/PW-2 stated that “We all were chitchatting inside the shop one or two feet away from each other. Accused Ali Gul made fire inside the shop. Accused Ali Gul made fire upon my brother at the distance of about 04 feet”. He admitted that Imamzadi is still wife of Manthar.
14. To support the version of the complainant, the prosecution examined PW-3/eyewitness Waheed Ali Wako(Ex.12), who came with the same disclosure as deposed by the complainant.However he admits that on 15.05.2018 police recorded his statement at police station and Mohammad Hashim was with him. He identified accused Ali Gul and Shah Mohammad @ Shahan present in the Court room to be same. In cross-examination he admits that the accused fired upon the deceased at the distance of about 02 feet. However he has denied the suggestion that he was not present at the place of incident.
15. Nadir Ali Wako PW-5, who acted as mashir in the main murder case as well as in the off-shoot cases of recovery of crime weapons from the accused, deposed that on 09.05.2018, at about 3.30 p.m. he came to know that accused persons had committed murder of Mohammad Ali @ Imdad Ali and caused injuries to Mohammad Azeem and they were brought to Taluka Hospital, on which he and Niaz went to Taluka Hospital Mehar and police also reached there, where so many persons were present and ASI asked them whether they were ready to become mashirs, on which he and Niaz replied in affirmative. Mohammad Ali was lying dead whereas doctor was giving treatment to the injured. ASI before them saw the injuries of injured Mohammad Azeem who had abrasion on left arm below the elbow and swelling and abrasion at waist and such memo was prepared by the ASI, contents of which were read over to them, on which he signed and Niaz put his LTI. ASI inspected the dead body and deceased had firearm injury on the right side of chest above the nipple, communicating through and through from back and blood was oozing. ASI prepared such memo before them, on which he signed and co-mashir put his LIT. Thereafter, Danistnama was prepared and lash chakas from was also prepared. The contents of same were read over to them and they signed/put LTI on Danistnama. The place of incident was the shop of complainant in Village Hasul Khoso located on the link road in deh Kakol Kinaro. When they went inside the shop, saw blood of Mohammad was lying, ASI collected the blood stained earth in a dabbi and two/three paces away from the blood inside the shop two empties of pistol were secured and from outside of the shop three empties of pistol were secured and ASI sealed the same and obtained his signatures on both parcels and also obtained LTIs of co-mashir and such memo was prepared on the spot, contents of which were read over to them, on which he signed and co-mashir put his LTI. From there they went to Taluka Hospital Mehar, reached there at 7.00 p.m., where doctor handed over the dead body of deceased and clothes to ASI Ali Akbar and Lakhedino received the dead body and the clothes were sealed there before them and his signature was obtained on sealed parcel and co-mashir put his LTI and memo was prepared, contents of which were read over to them, on which he signed and co-mashir put his LTI. He produced memos of injuries of injured Azeem, memo of arrest of accused and memo of recovery at Ex. 14/A to Wx14/G
16. Investigation Officer PW-6 ASI Akbar Ali Chandio, who is authored of FIRs as well as investigation officer in the present case as well as offshoot cases, in his evidence deposed that on the day of incident i.e. 09.05.2015 he being posted at PS B-Section Mehar was on patrolling duty under roznamcha entry No.11, where Mohammad Azeem Wako called him on cell phone that his brother Mohammad Ali had received fires and he has also received injuries at the hands of Ali Gul, Shah Mohammad @ Shahan and others and he brought his brother at the hospital and asked him to come at the hospital. He prepared memo of injuries of injured Mohammad Azeem and also prepared memo of dead body of deceased before mashirs Nadir Ali and Niaz Hussain. Lash Chakas form and Danistnama of dead body was also prepared, Mohammad Ali had firearm injury on his chest above the right nipple which was through and through and body was hot and blood was oozing. After preparation of memo, he asked Mohammad Azeem to show him the place of incident, then he along with Mohammad Azeem, Nadir and Niaz went to the place of incident, where he completed all formalities and prepared memos in the present of mashirs.
17. On 10.05.2018 complainant and Lakhedino both came at police station and narrated the facts of cognizable offence and he lodged FIR of this case against accused persons. On 10.05.2018 he arrested the accused Ali Gul and Shah Mohammad and nothing was secured from their personal search and such memo was prepared on the spot, in the present of mashirs. On 13.05.2018 during course of investigation both the accused agreed to produce crime weapons viz. pistols and in presence of both the mashirs the accused produced crime weapons which were sealed on the spot. On 15.05.2018 he recorded statements of witnesses. He sent the last worn clothes and blood stained earth to the chemical examiner and weapons were also sent to the Ballistic Expert. He received reports of Chemical Examiner and Ballistic Expert. He also recorded statements of police personnel on 13.05.2018. After usual investigation, he submitted challan. He identified the accused and the case property viz., pistols, empties, blood stained earth and clothes of deceased produced in Court to be same.Likewise, has been deposed by recovery mashir Nadir Ali in his evidence (Ex.14). He produced all documents from Exh. 13/F, memo of recovery Ex.14/A to Ex.14/G. He has also produced the entries No.14 and 15 jointly at Ex. 15/A to Ex.15/D. He produced chemical examiner report at Ex.15/G and FSL report at Ex.15/H. In cross-examination he admits that complainant was known to him prior to this incident and we had exchanged mobile numbers with each other, as they normally load balance from shop of Nadir Ali.
17. The evidence of PW Tapedar Faheem Ahmed Mahessar (Ex.10) is only to the extent of preparation of sketch of place of wardat on the pointation of complainant Mohammad Azeem, which he produced at Exh.10/B.
18. While conducting their cross-examination, the learned defence Counsel could not achieve any fruitful results from their mouths. Likewise, the complainant/eye-witnesses, Investigating Officer, mashir and medical officer were put on a length cross-examination wherein also the learned counsel for the decence asked multiple questions to shatter the credibility of their evidence but they could not extract anything from any of them who remained consistent on all material aspects of the case.
19. Neither, the prosecution needs to draw the said aspect of the matter, nor does the defence devoted to discarding it thus it is an admitted fact that the deceased has died of unnatural death. The medical evidence also describes the seat and nature of injuries and how the death occurred. The medical officer Dr. Sikandar Ali Bhand (Exh.13), apart from examining injured complainant Mohammad Azeem, has also conducted postmortem of deceased Mohammad Ali @ Imdad Ali Wako and he deposed that 09.05.2018 he received dead body of deceased Mohammad Ali @ Imdad Ali son of Mumtaz Ali Wako along with Police Letter No. 463-18 dated 09.05.2018 brought by ASI Ali Akbar Chandio for postmortem and report. The dead body was identified by (1)Mohammad Hashim s/o Mohammad Ali (uncle) and (2)Niaz Hussain s/o Mohammad Hashim (cousin). He started postmortem at 4.30 p.m. and finished at 6.15 p.m. on same day. On external examination, he found following injuries on the person of deceased:-
1. Firearm punctured type of wound measurement 1 c.m in diameter on right side of chest just above nipple (wound of entrance).
2. Firearm lacerated type of wound measurement 1.5 c.m x 1.2 c.m on back of right side of chest (exit of injury No.1).
According to his opinion, the death of deceased occurred due to damage of vital organ i.e. right lung and excessive hemorrhagic shock due to the injuries caused by discharge from firearm and ante-mortem in nature, which were sufficient to cause death in ordinary course of life. The probable time between death and postmortem was about one hour and between injury and death was instantaneous. He issued such postmortem in respect of the deceased and produced at Exh.13/G and affirmed that it was issued by him. Hence ocular evidence finds support from the medical evidence. Reference is placed in the case of Zahoor Ahmad Vs. The State [2017 SCMR 1662], wherein the Honourable Supreme Court of Pakistan has held that:-
“4. ……. The ocular account in this case consists of Muhammad Khan complainant (PW-6) and Shehbaz (PW-7). They gave the specific reasons of their presence at the place of occurrence as, according to them, they along with the deceased were proceeding to harvest the sugarcane crops. Although they are related to the deceased but they have no previous enmity or ill-will against the appellant and they cannot be termed as interested witnesses in the absence of any previous enmity. They remained consistent on each and every material point. The minor discrepancies pointed out by the learned counsel are not helpful to the defense because with the passage of time such discrepancies are bound to occur. The occurrence took place in broad day light and both the parties knew each other so there was no mistaken identity and in the absence of any previous enmity there could be no substitution by letting off the real culprit especially when the appellant alone was responsible for the murder of the deceased. The evidence of the two eye-witnesses was consistent, truthful and confidence inspiring. The medical evidence fully supports the ocular account so far injuries received by the deceased, time which lapse between the injury and death and between death and postmortem. Both the Courts below have rightly convicted the appellant under section 302(b), P.P.C.”
20. Before discussing the prosecution evidence, I feel it necessary to mention here that so far appellant Shah Mohammad alias Shahan is concerned, he is not attributed the role of firing at deceased Mohammad Ali alias Imdad Ali. Per prosecution case, it was appellant/accused Ali Gul, who had fired upon the deceased. It was alleged in the FIR as well by the complainant and PW Waheed Ali that all the accused persons beaten the complainant with butts of pistols. The injuries on the person of complainant cannot be attributed to appellant Shah Mohammad alias Shahan, firstly for the reason that same are not exclusively and individually attributed to him and secondly the medical officer Dr.Sikandar Ali in his evidence(Exh.13) has admitted in cross-examination that injuries to injured can be caused by falling on earth. Therefore, in my humble view, the prosecution has not been able to establish the charge of main murder case against appellant Shah Mohammad alias Shahan beyond reasonable doubt.
21. So far appellant Ali Gul Wako is concerned, the perusal of the evidence of the complainant and eye-witness reveals that they cannot be termed as chance witnesses but rather would fall within the category of natural witnesses. From the appreciation of evidence, it is crystal clear that the prosecution remained successful to bring cogent and unimpeachable direct evidence well supported and corroborated by the evidence of investigating officer, recovery of crime weapons, mashirs and medical version against the appellants/accused. The evidence of the complainant and eyewitness cannot be discarded merely on the basis that they are related inter-se but their presence at the venue of occurrence was obvious, as the incident took place during broad-day-light when these witnesses were already available at the place of incident. Accused Ali Gul has been assigned with a definite role. At the time when the statement of the appellant Ali Gul in terms of Section 342, Cr.P.C. was recorded, and no material substance has been brought on record by appellant Ali Gul to justify his false involvement at the hands of the complainant party. The defence plea of the accused being general in nature went fruitless.
22. In the instant matter, the complainant and eyewitness have sufficiently explained the date, time and place of occurrence as well as each and every event of occurrence in a clear-cut manner. I would not hesitate to say that where the witnesses fall within the category of natural witnesses and give a detail of the incident in a confidence-inspiring manner, their evidence will not brushed aside. The only scope available to appellant Ali Gul is to satisfactorily establish that the witnesses are not the witnesses of truth but are interest which he has failed to demonstrate. In matters of capital punishment, the accused would not stand absolved by making a mere allegation of matrimonial dispute/ enmity but would require to bring on record that there had been such a dispute/enmity which could be believed to have motivated the witnesses in involving the innocent person at the cost of the real culprit. In the instant case, the complainant admitted that the girl of accused party had contracted court marriage with his brother Manthar Ali. Appellant Ali Gul while recording his statement under Section 342, Cr.P.C. could not bring on record any substance to justify his false implication at the hands of the complainant party due to matrimonial dispute. Thus, no material has been brought on record by appellant Ali Gul to show the deep-rooted enmity existed earlier between the parties, which could have been the reason for the false involvement of the accused in this case. Reliance in this respect is placed in the cases of Lal Khan v. The State (2006 SCMR 1846), Farooque Khan v.The State (2008 SCMR 917), Zulfiqar Ahmed and others v.The State (2011 SCMR 492) so also case of Zahoor Ahmed v. The State (2007 SCMR 1519), wherein the Hon’ble Apex Court has held that:-
“6. ……….. The petitioner and the complainant party are undisputedly closely related to each other. The petitioner is a maternal-cousin of the deceased, so also the first cousin of the deceased through paternal line of relationship and thus, in the light of the entire evidence it has correctly been concluded by the learned High Court that the blood relation would not spare the real culprit and instead would involve an innocent person in the case. Further, it has rightly be observed that it was not essential for the prosecution to produce each of the cited witnesses at the trial.”
23. Learned Counsel for the appellants pointed out some minor contradictions and discrepancies in the evidence of witnesses, which in my view occur due to lapse of time in recording statements of complainant and his witness and thus are not sufficient to hold that the case of the prosecution is doubtful. It is settled by now that, when the prosecution established its case beyond a reasonable doubt by producing reliable, trustworthy and confidence-inspiring evidence supported by other evidence viz., medical and circumstantial evidence, then if there may be some minor contradictions which always are available in each and every case, the same are to be ignored, as has been held by the Honourable Supreme Court in the case of Zakir Khan v. The State (1995 SCMR-1793).The relevant paragraph is reproduced hereunder:-
“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 general 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.”
24. Turning to the circumstantial account which is also fully consistent with the ocular account. In that, the investigating officer during the course of the investigation on confession of guilt by the accused secured the crime weapons viz., pistols on their lead, wherein appellant Ali Gul admitted that it was the same pistol with which he had fired upon deceased Mohammad Ali. In that situation, the recovery of empties “C1 & C2” secured by investigation officer from the venue of occurrence, on chemical analysis through Forensic Laboratory justified legally that the same were fired from the pistol which was secured from the possession of appellant/accused Ali Gul
26. Consequent upon above discussion, I am of the considered view that the prosecution has successfully established the charges against appellant/accused Ali Gul Wako of committing murder of deceased Mohammad Ali alias Imdad Ali Wako and of recovery of crime weapon viz., an unlicensed pistol from his possession through an ocular account which even otherwise is also corroborated by the medical evidence coupled with recovery of crime weapon from him. Learned Counsel for appellant Ali Gul has failed to point out any material illegality or serious infirmity committed by the learned trial Court while passing the impugned judgment in respect of conviction awarded to appellant Ali Gul, which is based on proper appraisal of the evidence and the same does not call for any interference by this Court. Thus, the convictions and sentences awarded to appellant Ali Gul Wako by the learned trial Court in both the cases viz., main murder case as well as the offshoot case of recovery of crime weapon are hereby maintained and the appeals filed by him merit no consideration, which were dismissed vide short order dated 03.07.2023. However, appellant Shah Mohammad alias Shahan Wako was also acquitted vide short order dated 03.07.2023 of the charge of main murder case.
28. Above are the detailed reasons of my short order dated 03.07.2023. Office is directed to send the certified true copy of this judgment to the concerned Jail Superintendent, with direction to transmit such copy to appellant Ali Gul Wako.
JUDGE
QaziTahir PA/*