2023 PLP 1040 (MLD)

ZULFIQAR ALI SANGI, J.

Through this appeal, the appellants have assailed the judgment dated 06.04.2019 (impugned herein) passed by learned 1st Additional Sessions Judge/MCTC, Kambar Shahdadkot alias Kambar, whereby they were convicted under section 265-H(ii), Cr.P.C for the offence under section 302(b), P.P.C. and sentenced to suffer imprisonment for life and to pay Rs.300,000/-each as compensation to the legal heirs of deceased in terms of section 544-A, Cr.P.C and in case of default, they shall suffer S.I for six months more; besides they were sentenced to suffer R.I for five years for offence under section 324, P.P.C. and to pay Arsh to the tune of Rs.6,85,312/- each (1/3 of Diyat, which is Rs.20,55,963/-) at present for payment to injured Abdul Majeed Brohi within the period prescribed by law.

2. Succinctly case of prosecution as depicted from FIR captioned above is that on 13-9-2015 complainant Raza Muhammad Shaikh lodged FIR at P.S Drigh stating therein that on 13-9-2005 at 7:30 a.m. near the land of Murad Brohi accused 1) Ali Akbar son of Ghulam Hussain, armed with rifle, 2) Niser son of Ibrahim, armed with Rifle, 3) Akhtiar alias Moar son of Ali Akbar, armed with 222 Rifle, 4) Ibrahim son of Ghulam Hussain, armed with Rifle, 05) Riaz son of Ali Akbar armed with Rifle and 06) Mumtaz son of Abdul Qadir Soomro, armed with gun all resident of village Glulam Hussain Shaikh Taluka Kamber intercepted the complainant party on the way and out of them accused Ali Akbar son of Ghulam Hussain Shaikh fired with his rifle at Ameer Ali Brohi, which hit him at his abdomen and accused Nisar son of Ibrahim also fired with his rifle at complainant's son Abdul Majeed which also hit him at the abdomen so the complainant and witnesses beseeched them on holy oaths on which they, making aerial firing went towards their houses.

3. After investigation the case was challaned, the trial court after completing all formalities framed the charge against the appellants to which they pleaded not guilty and claimed to be tried.

4. The Prosecution examined 08 witnesses (i) ASI Mashooque Ali Chandio the author of FIR as PW-01 at Exh: 09 who produced FIR at Exh-09/A. (ii) Raza Muhammad Brohi Complainant as PW-02 at Exh-10, (iii) Abdul Majeed Brohi (injured eye-witness as PW-03 at Exh-11, (iv) Ameer Bux Brohi (Eye-witness) as PW-04 at Exh-12, (v) Dr. Mushtaque Ahmed Noonari as PW-05 at Exh-14, who produced two original medical referral letters bearing No.522 Dated 13-9-2005 issued by ASI P.S Drigh to M.O, CMC Hospital Larkana, original MLC of injured Abdul Majeed, original final MLC dated 10-10-2005 of injured Abdul Majeed showing reserved injury as Jurh-Jaifah, original MLC of Ameer Ali and original Post-Mortem report of Ameer Ali at Exh-14/A to 14/F, (vi) Tapedar Hussain Bux Gaad as PW-06 at Exh:15, who produced original sketch of place of incident at Exh-15/a. (vii) Mashir Muhammad Umer Brohi as PW-07 as Exh:16, who tendered in evidence original mashirnama of inspection of place of incident, recovery and seal of empties of rifle and gun cartridges original mashirnama of inspection of injuries of both injured, original mashirnama of inspection of dead body of deceased Ameer Bux Brohi, original danistnama of deceased Ameer Bux, original mashirnama of arrest and body search of accused Ali Akbar and Riaz Hussain, (viii) I.O Aijaz Ali Massan as PW-08 at Exh-17, who tendered in evidence departure Entry No. 05, letter bearing No.79/2005 dated; 12-9-2005 in respect of addition of section 302, P.P.C. at Exh-17/a and 17/b. Thereafter learned DDPP closed the prosecution side vide his statement at Ex.18.

5. The statements of the accused were recorded in terms of section 342, Cr.P.C at Exhs-19 to 24 wherein they denied prosecution allegations and claimed to be innocent and prayed for justice, however, they neither examined themselves on oath under section 340(2), Cr.P.C nor examined any witness in their defence.

6. The trial court after hearing the parties and on assessment of evidence convicted and sentenced to the appellants as stated above against which the appellants preferred this jail appeal.

7. At the very outset, learned Counsel for the Appellants have contended that the Appellants are innocent and have falsely been implicated by the Complainant party; that the complainant and witnesses are admittedly nominated in FIR bearing Crime No.78 of 2005, registered by the Appellant No.1 at P.S. Drigh for an offence punishable under sections 324, 148, 149, 337-H(2), P.P.C.; that there were material contradictions in the evidence of complainant as well as eye-witnesses hence case of the prosecution cannot be free from shadow of reasonable doubt; 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; that impugned judgment is clear example of misreading and non-reading of evidence; that the trial court has not considered the settled principle of law that a single dent in prosecution case, which seems to be necessary, goes in favour of accused. In support of their contention, learned Counsel have placed reliance on the cases of Muhammad Mansha v. The State (2018 SCMR 772), Tariq Pervez v. The State (1995 SCMR 1345), Muhammad Javaid v. The State (2016 PCr.LJ 18), Muhammad Akram v. The State (2009 SCMR 230), Muhammad Sadiq v. The State (2017 SCMR 144), Amin Ali v. The State (2011 SCMR 323) and Muhammad Noor v. Riaz Shah and another (2016 MLD 757). Lastly, they submitted that the impugned judgment may be set-aside and the appellants may be acquitted by extending them the benefit of the doubt in the interest of justice.

8. Learned Deputy Prosecutor General has mainly contended that all the PWs have deposed in the same line; that the injured eye-witness also fully supported the case; that ocular evidence is in consistence with the medical evidence; that no major contradiction in the evidence has been pointed out however some minor contradictions has been pointed out in the evidence of witnesses which are not sufficient to acquit the appellants; that the prosecution evidence is reliable, trustworthy and confidence inspiring. Lastly he prayed that by dismissing instant appeal, conviction awarded by the learned trial Court may be maintained.

9. I have heard learned Counsel for the Appellants as well as learned Deputy Prosecutor General and have carefully examined the material available on record with their able assistance.

10. The evidence produced by the prosecution in the shape of ocular and medical evidence coupled with documentary evidence, including medico Legal reports of the injured Abdul Majeed and the Postmortem report of the deceased Ameer Ali, established beyond any shadow of reasonable doubt that on 13-09-2005 at about 0730 hours at the land of Murad Brohi near the houses in village Ghulam Hussain Shaikh they received firearm injuries on their person and later on injured Ameer Ali was died in the hospital on 18-09-2005, due to un-natural death. The prosecution in order to prove the injuries and the death of deceased as un-natural examined Dr. Mushtaque Ahmed, who had examined injured Abdul Majeed and conducted postmortem of deceased Ameer Ali, deposed that on 13.09.2005 he was posted as CMCH Larkana as Assistant Police Surgeon. On that day he received injured Abdul Majeed and Ameer Ali, referred by SHO Drigh, vide letters No.522 dated 13.09.2005 for treatment and examination. Injured Abdul Majeed son of Raza Muhammad Brohi was examined and he found the following injuries on his person:- 1-A. One lacerated punctured wound 0,6 cm in diameter into cavity deep below umbilicus on lower port of abdomen with everted margins (wound of entry). 1-B. Lacerated punctured wounds 2 cm in diameter with everted margins on right back of chest lumber region (wound of exist of injury No.1-A).

11. The injuries were reserved for expert opinion and it was finalized on 10.10.2005, then he issued final medical certificate. According to him the injuries were caused by firearm. The injury was declared Jurh Jaifah, then provisional and final medico legal certificates of injured were issued by him.

12. Injured Ameer Ali son Ameer Bux Brohi was also examined on 13.09.2005 and found the following injuries on his body. 1-A. One lacerated punctured wound 0.6 cm in diameter on right side of abdomen near umbilicus into cavity deep with everted margins (wound of entry). 1-B. 2 cm in diameter everted margins on right side back of chest near vertebral column. (wound of exist of injury No.1-A).

13. The injuries were kept reserved. According to him probable duration of injuries in respect of injured were fresh and discharge by fire arm, therefore the same were reserved for observation and X-ray. He issued provisional medical certificate in respect of Ameer Ali on 13.09.2005, then injured expired away and postmortem was conducted by Dr. Ghulam Muhammad Memon, Medico Legal Officer, CMCH Larkana on 18.09.2005. The said doctor had expired away due to his natural death and such postmortem report was issued by him. He see the postmortem report and verified the signature and stated that he know his signature as he worked with him in same department. The postmortem was conducted at 03:30 pm to 04:10 pm and death of deceased had occurred due to fire arm as per the report of said doctor.

14. In order to prove ocular and circumstantial evidence the prosecution examined PW1/ASI Mashooq Ali who deposed that on 13-09-2005 he was posted as ASI at PS Drigh, on the same day at about 2300 hours complainant Raza Muhammad Brohi came at PS Drigh and he recorded FIR under section 154, Cr.P.C and read over the contents of the FIR to complainant, he accepted the same to be correct and obtained LTI thereon. Thereafter the investigation was transferred to the investigation branch. FIR is a counter FIR of Crime No.78/2005 of the same PS. He was cross-examined by the defence counsel but there is no denial that FIR was not registered.

15. The prosecution then examined Complainant Raza Muhammad as PW-2 who deposed that on 12.9.2005, Ameer Bux and Ameer Ali came to him as guest in the evening time. On the next morning about 07:00/07:30 a.m. they were passing from the land of Murad Brohi where they saw that accused Ali Akbar, Mour alias Akhtiar, Riaz, Ibrahim. Nisar, Mumtaz Soomro duly armed confined them. Accused Akbar armed with Rifle, Nisar with rifle, Riaz with rifle, Ibrahim with rifle. Mumtaz Soomro with gun, Mour alias Akhtiar armed with 222 rifles. Accused Akbar gave hakal and asked that why they are coming as there is dispute between Murad and them over land, hence he kills them. Accused Akbar made fire which hit to Ameer Ali at his abdomen. Accused Nisar made fire which hit to his Son Abdul Majeed on his abdomen. The remaining accused persons also made aerial firing upon them. Then they gave the names of Holy Quran to the accused persons, thereafter they went to their village. Then he arranged the vehicle and shifted the injured to Larkana Hospital. Thereafter he came at P.S Drigh at about 10:00/11:00 p.m. for registration of FIR which was registered and then Police visited the place of incident on the next day on his pointation and prepared such mashirnama of place of incident and secured blood stained earth, empty shell of rifles and cartridges. On 18.9.2005 Ameer Ali was expired at Hospital. He was cross-examined at length by the defence counsel but no major contradiction in his evidence is seen.

16. The prosecution then examined injured eye-witness namely Abdul Majeed as PW-3 who deposed that on 12.9.2005 Ameer Ali and Ameer Bux came as guest. On 13.9.2005 in the morning time at about 07:00 a.m., he, complainant Raza Mohammad, Ameer Ali and Ameer Bux came out from their house and reached at the land of Murad Brohi where they saw accused lban son of Ghulam armed with rifle, Ali Akbar armed with rifle, Nisar armed rifle, Riaz with rifle, Mour alias Akhtiar armed with 222 rifle, Mumtaz armed with gun. Accused Akbar challenged Ameer Ali and asked them that they would kill them, then accused Akbar made straight fire from his rifle which hit to Ameer Ali on his abdomen. Accused Nisar made rifle fire which hit him on his abdomen. Then remaining accused made aerial firing and then went towards their houses. Thereafter they were shifted to Larkana Hospital. Then his father went to Police Station and lodged FIR. Police saw his injuries and prepared such mashirnama at hospital. His statement under section 161, Cr.P.C was recorded by the police. He was cross-examined by the defence counsel but failed to point out any major/material contradiction in the evidence.

17. The prosecution examined third eye-witness of the incident namely Ameer Bux as PW-4 who deposed that on 12.9.2005 he, his son Ameer Ali went to their relative Raza Muhammad and stayed there as guest. On 13.9.2005 in the morning, he, his son Ameer Ali, Raza Mohammad and his son Abdul Majeed left the house of Raza Mohammad and proceeded towards their village and when at about 07:30 a.m., reached at the land of Murad Brohi, where they saw six persons and identified them as Ali Akbar son of Ghulam Husain Shaikh, Mour alias Akhtiar son of Ali Akbar, Riaz son of Ali Akbar, Ibrahim son of Ghulam Hussain Shaikh, Nisar son of Ibrahim, Mumtaz son of Abdul Qadir Soomro. All the six persons gave hakal to them and asked Ameer Ali that why they came there, as there is a dispute in between them and Murad over the land, therefore, he would not be spared and would be done to death. Then accused Akbar made straight fire from rifle which hit to Ameer Ali at his abdomen which went through and through who fell down. Accused Nisar son of Ibrahim made straight fire upon Abdul Majeed which hit him at his abdomen and went through and through. Thereafter remaining four accused making aerial firing went away towards their houses. Thereafter they shifted the injured through Taxi to Larkana hospital and complainant went to P.S and lodged the FIR. On 18.9.2005 his son Ameer Ali had expired. On 26.9.2005 Police recorded his statement under section 161, Cr.P.C. This eye-witness was also cross-examined and except some minor contradiction nothing is brought on record which favours the appellants.

18. The prosecution examined Tapedar namely Hussain Bux as PW-6 who prepared the sketch of place of wardat and exhibited in the evidence. His evidence is only in respect of place of wardat which even otherwise has not been disputed by the defence counsel as no suggestion was made to him that the incident was not taken place at the place for which he prepared the sketch. The prosecution further examined mashir of the case namely Muhammad Umar as PW-7 who deposed that on 14-09-2005, at about 06:30 a.m., I.O inspected place of incident in his presence and collected two empties of triple two rifle, 08 empties of other rifle and four red empties of cartridges of .12 bore and sealed the same in one parcel. He prepared such mashirnama and went away. After that on the same date, he also inspected injuries of injured Ameer Ali and Abdul Majeed in CMC Larkana in his presence. He also prepared such mashirnama and went away. After few days, injured Ameer Ali expired in the hospital and he saw that his dead body was lying in the hospital. Further, the same police officer also arrested the accused on 14-09-2005 in his presence. The mashir during cross-examination on suggestion of defence counsel admitted that he was the Hari (farmer) of accused Ali Akbar. No direct enmity was suggested with this witness for deposing falsely against the appellants.

19. The important witness of the case, investigation officer Aijaz Ali was examined as PW-8 who deposed that on 13-09-2005, he was posted as SIO PS Drigh, on the same date, ASI Mashooque Ali Chandio handed over him FIR of Crime No. 79/2005, under sections 324, 148-149, P.P.C. as well as complainant to him for investigation, hence he started investigation on the same date. In the first instance, he arrested complainant Raza Muhammad, who was wanted in FIR, Crime No. 78/2005 of PS Drigh, such mashirnama was prepared in presence of mashirs. Thereafter, on 14-09-2005, he inspected place of incident at the pointation of the complainant in presence of mashirs namely Muhammad Umar Brohi and Manzoor Ali Brohi. The place of incident was a land, situated outside of the village Ghulam Hussain Shaikh, Taluka Kamber. He deposed that during such investigation, secured two empties of triple two rifle, 08 empties of other rifle and four red empties of cartridges of .12 bore. He deposed that he sealed the recovered property into separate parcels, prepared such mashirnama in presence of both mashirs and also obtained their LTIs on it. After that on the same date, he inspected injuries of injured Ameer Ali Brohi in Government Hospital at Larkana in presence of same mashirs. He found that both injured Ameer Ali and Abdul Majeed sustained firearm injuries. He prepared such mashirnama there and also obtained thumb impressions of both mashirs on it. After that, he tried to record statements of both injured under section 161, Cr.P.C, but they were not in a position for recording such statement. After that on 18-09-2005, injured PW Ameer Ali expired, hence he proceeded towards CMC Hospital Larkana, where he found the dead body, inspected it and also prepared such mashirnama in presence of the same mashirs and obtained their thumb impressions. Thereafter, he also prepared such Danistnama in their presence and also obtained their thumb impressions on it. After that, he referred the dead body of Ameer Ali to the concerned Surgeon of the hospital through PC Allah Warayo for his post-mortem. Thereafter, he added section 302, P.P.C. in this case due to expiry of one injured Ameer Ali. Further on 22-09-2005, he arrested two nominated accused namely Ali Akbar and Riaz Hussain from their guest house (Otaque) in presence of same mashirs and prepared such mashirnama of their arrest, body search and also obtained LTIs of both mashirs. On 25-09-2005, he also recorded statement of eye-witness namely Abdul Majeed Brohi in terms of section 161, Cr.P.C in CMC Hospital Larkana and on 26-09-2005, he recorded the statement of another eye-witness namely Ameer Bux Brohi under section 16l, Cr.P.C. During investigation, he recoded statements of neutral persons namely Nasrullah Shaikh, Khadim Hussain Shaikh, Deedar Shaikh, Kaleemullah Shaikh and others, who stated that accused Ali Akbar Shaikh was with them at village Areeja at the time of alleged incident. As such, he concluded investigation and submitted challan by placing the name of accused Ali Akbar Shaikh in Column No. 02 and submitted such report in the Court. This witness was cross-examined during which he admitted that he also investigated the case FIR No. 78/2005 lodged by the appellant Nisar and the place of incident of both the FIR's is situated in the same village. No material contradiction in his evidence is found.

20. On reassessment of the entire evidence as discussed above it appears that the prosecution has proved the case against the appellants beyond any reasonable doubt by producing reliable, trust worthy and confidence inspiring evidence. Three eye-witnesses of the incident deposed against the appellants, one of them received firearm injury at the time of incident. They all are in consistence with each other that the appellants made direct fire form their respective weapons upon the injured and the deceased. It is a day time incident and the parties are known to each other, therefore there is no chance of mistaken identification.

21. The FIR of the present case was registered promptly. Incident took place on 13-09-2005 at 0730 hours, FIR was registered on the same day at 2300 hours and the injured were examined by the doctor on the same day at 9-30 a.m., which exclude 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 hospital to save the life of injured persons and thereafter leaving them at hospital immediately reached at police station, and after the FIR police along with the complainant came at the hospital. The complainant and the injured witness gave full particulars of the incident to the police. The Honourable Supreme Court in case of Farman Ali and another v. The State and another (2020 SCMR 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.

22. Contentions raised by the learned counsel for the appellants that the witnesses are related to each other and are interested, therefore, their evidence cannot be relied upon has no force as although the witnesses are related to each other but they specifically deposed against the appellants. Complainant immediately approached the police station where his FIR was registered in which he has given full particulars of the incident, thereafter, police proceeded towards the hospital, two persons received injuries from which one died and one is alive who also fully supported the version of complainant mentioned in the FIR, hence the presence of complainant and the eye-witnesses at the place of incident fully established. In the case of Nasir Iqbal alias Nasra and another v. The State (2016 SCMR 2152), the 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."

23. To believe or disbelieve a witness all depends upon intrinsic value of the statement made by him. Even otherwise, there cannot be a universal principle that in every case interested witness shall be disbelieved or disinterested witness shall be believed. It all depends upon the rule of prudence and reasonableness to hold that a particular witness was present on the scene of crime and that he is making true statement. A person who is reported otherwise to be very honest, above board and very respectable in society if gives a statement which is illogical and unbelievable, no prudent man despite his nobility would accept such statement. Reliance can be place on the case of Abid Ali and 2 others v. The State (2011 SCMR 208). The mere fact that a witness is closely related to the accused or deceased or he is not related to either party, is not a sole criteria to judge his independence or to accept or reject his testimony rather the true test is whether the evidence of a witness is probable and consistent with the circumstances of the case or not as has been held by the Honourable Supreme Court of Pakistan in the case of Lal Khan v. State (2006 SCMR 1846). It is well settled by now that merely on the ground of inter se relationship the statement of a witness cannot be brushed aside. Even the 'friendship or relationship with the deceased will not be sufficient to discredit a witness particularly when there is no motive to falsely involve the accused as has been held by the Honourable Supreme Court of Pakistan in the cases of Zulfiqar Ahmed and another v. The State (2011 SCMR 492) and Iqbal alias Bala v. The State (1994 SCMR 01).

24. Another contention of learned counsel for the appellants that crime weapon used by the appellants at the time of offence was not recovered from the appellants, therefore, the appellants cannot be connected with the offence, has no force in view of that, all the prosecution witnesses supported the case of prosecution by deposing that the appellants directly fired from their respective weapons which hit the injured and the deceased and their direct evidence is further corroborated by medical evidence as the doctor who examined the injured and the deceased had found firearm injuries on their person. It is settled by now that where charge was proved by other direct, natural and confidence inspiring evidence, then non-recovery of crime weapon was not fatal to the prosecution case. Reliance is placed on the case of Sikander Teghani alias Muhammad Bux Teghani v. The State (2016 YLR 1098).

25. Learned counsel for the appellants pointed out some minor contradictions and discrepancies in the evidence which in my view are not sufficient to hold that the case of prosecution is 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 the same 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."

26. 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 each offence in the judgment whilst dismissing the appeal. JK/N-8/Sindh Appeal dismissed.