2016 P Cr (PLP)

AFTAB AHMED GORAR, J.

By this Judgment I propose to dispose of instant Criminal Appeal filed against the Judgment dated 29.03.2011 passed in Crime No.56/2010 of Police Station Islamkot under section 302, P.P.C., whereby the appellant has been convicted and sentenced under section 302(b), P.P.C. to suffer simple imprisonment (S.I) for life and to pay compensation of Rs.2,00,000/- to the legal heirs of deceased as required under section 544-A, Cr.P.C. and in case of failure, he shall suffer further S.I. for two years. Appellant was however extended the benefit of section 382-B, Cr.P.C.

2. Precisely, the facts of prosecution case as narrated in the FIR lodged by complainant Shoukat Ali son of Abdul Ghafoor Dars are that there exists a shop of one Kamal Dars in the eastern side of his house where the accused Mushtaque @ Mustafa son of Manthar by caste Dars resident of Village Koonbhario used filthy language and to create nuisance in the night time for which he was restrained by the complainant as there is his house, as such he was not allowed to make noise and to use filthy language, whereupon accused became annoyed and threatened him that he would see him later-on. It is further stated that on 24.09.2010, when the complainant was present in his house and his son Rashid Ali aged about 10/11 years had gone in jungle for grazing the cattles of cows and while the complainant with PWs Mumtaz Ali and Muhammad Raheem were jointly going to their fields on the track. leading towards northern side from village and when at about 11-00 a.m. they reached in the eastern side of "Bhavlo-Daho", they heard a firearm report on which he (complainant) and P.Ws Mumtaz Ali and Muhammad Raheem rushed towards the said direction and when they reached in the North-East angle, near the "Jar", they saw that the son of complainant Rashid Ali was fallen on the earth having a bullet injury in his right eye from where the blood was oozing and he was fluttering, while they all the three persons saw the present appellant having pistol in his hand, who on seeing the complainant party went away towards his house while the son of complainant Rashid Ali died in their presence. Thereafter, such incident was reported to SHO PS Islamkot on telephone and after completing necessary formalities the FIR was registered.

3. During trial the accused/appellant was referred to Special Medical Board for determination of his age and he was found to be the age of 17 years hence he was treated as juvenile to be dealt with under the Juvenile Justice System Ordinanee, 2000.

4. At the trial, prosecution examined PW-1. Complainant Shoukat, P.W.2. Mumtaz Ali. P.W.3. Muhammad Raheem P.W.4. SIP Taj Muhammad. P.W.5. Qaim Ali, P.W.6. Ghulam Murtaza, P.W.7. Dr. Muhammad Iqbal Medical Officer and P.W.8. I.O/ASI Bheem. Thereafter, DPP closed the prosecution side.

5. Statement of accused under section 342, Cr.P.C. was recorded, wherein he denied the prosecution allegations. He did not examine any witness in his defence, however he examined himself on Oath as required under section 340(2), Cr.P.C. in disproof of the prosecution case. Thereafter, learned defence counsel closed the side of defence.

6. Learned counsel for the appellant contended that the appellant is innocent and has been falsely implicated in the case; the alleged incident is unseen and there is no evidence against the appellant to connect him in this case; the alleged eye-witnesses seen the appellant with pistol by running but they did not see him by firing upon the deceased; there are material contradictions in the case of prosecution which have not been considered by the trial Court; complainant and the witnesses are related inter se hence inimical to the present appellant; admittedly there was enmity between the appellant and complainant party hence false implication of the appellant cannot be ruled out; medical evidence is contradictory to the ocular evidence. He lastly contended that impugned judgment is misconceived and passed without considering the legal aspects of the case. In support of his contentions, learned counsel has placed reliance on the cases reported as PLD 2008 Lahore 268, 2009 PCr.LJ 533, 2010 PCr.LJ 1842, 2010 YLR 2335, 2010 MLD 817, 2010 PCr.LJ 1163, 2008 MLD 1476, 2008 MLD 1558 and 2008 SCMR 707.

7. On the other hand, learned A.P.G. contended that prosecution, has proved the case against the appellant beyond any shadow of doubt. Complainant and the eye-witnesses have fully supported the case of prosecution; medical evidence is also corroborating the ocular version hence there is no any infirmity in the impugned judgment which has been passed with cogent reasons and findings. He relied upon the cases reported as 1991 PCr.LJ 2167 and 2007 SCMR 1639.

8. I have heard learned counsel for the appellant, learned A.P.G. for the State and minutely examined the evidence of the prosecution case.

9. As per prosecution case, the appellant was seen by the complainant and eye-witnesses at the time of incident having pistol in his hand. Enmity was also admitted between the parties therefore, motive of the alleged incident is proved. Complainant and the eye-witnesses have fully supported the case of prosecution while deposing that they saw the accused by holding pistol in his hand where the dead body of deceased was lying. Medical evidence also corroborates the circumstantial evidence. Medical Officer has also opined that cause of death is due to firearm injury. Though there are minor contradictions in the prosecution case but same can be brushed aside and ignored. Admittedly, the deceased Rashid Ali received firearm injury and died his unnatural death and the presence of appellant at the spot with pistol itself proves his guilt and cannot easily be ruled out. Moreover, the Forensic Expert report also proves the guilt of accused which connects him in the commission of offence. Admittedly, there is no direct evidence that who saw the accused while making fire but the circumstantial evidence support the case of prosecution. Furthermore, the ocular evidence corroborates the medical evidence, Forensic Expert's report as well as chemical report which prove the case of prosecution. It is a matter of record that crime weapon viz. pistol was also recovered from the possession of accused which was sent for ballistic expert's report and the report is positive. The case law cited by learned counsel for appellant are not applicable to the case in hand.

10. I have also gone through the statements of the prosecution witnesses who have furnished consistent evidence as far as it relates to relationship between the appellant and deceased, the manner in which appellant committed the crime. All the prosecution witnesses were cross-examined thoroughly but nothing was brought on record to shake the intrinsic value of their evidence. It is settled principle of law that while deciding the cases pertaining to criminal administration of justice, Court is required to take into consideration the intrinsic value of the evidence instead of laboring un-necessarily to find out such contradiction and improvements in the evidence which ultimately turns to nothing. Reference in this regard can be made to the case of Mushtaque alias Shaman v. The State (PLD 1995 SC 46).

11. Now the next question for consideration is motive. It may be noted that prosecution has set up the motive against the appellant that he was annoyed with the father of deceased (complainant) over some dispute. The appellant-has failed to bring on record any animosity with the complainant for his false implication for committing the murder of deceased. The appellant has committed the murder of a young boy aged about 10/11 years in a cruel manner. The prosecution has brought on record truthful and believable evidence which implicate the appellant in the commission of offence.

12. In view of above. I am of the considered view that prosecution has proved its case against the appellant beyond any shadow of doubt as no case is made out for interference in the impugned judgment. Accordingly, this Criminal Appeal having no merits for consideration is hereby dismissed. MH/M-38/Sindh Appeal dismissed.