2020 PLP 70 (YLRN)

MUHAMMAD SALEEM JESSAR, J.

Through this common judgment we intend to dispose of above two criminal appeals as both relate to one and the same incident, and were decided by a common judgment by the trial Court.

2. In both these Criminal Appeals the appellant, Khan Muhammad, has impugned Judgment dated 3.11.2018, passed by learned Judge Anti-Terrorism Court, Shikarpur in Special Case No.10 of 2018 in Crime No.91/2017 under sections 302, 324, 353, 399, 402, 148 and 149, P.P.C. read with sections 6 and 7 of Anti Terrorism Act, and Special Case No.11 of 2018 in Crime No.92/2017 under section 23(i)-A, Sindh Arms Act, both crimes were lodged at Police Station Rustam, District Shikarpur, whereby the appellant was convicted and sentenced as under: a. Accused Muhammad Khan was convicted for an offence punishable under section 302(b), P.P.C. read with section 149, P.P.C. and sentenced to suffer R.I for life. He was also ordered to pay compensation of Rs. 100,000/- to the legal heirs of deceased PC Qurban Ali as compensation under section 544-A, Cr.P.C. In case of default of payment or recovery of aforesaid amount he was further to undergo R.I. for six months more. b. He was also convicted for an offence punishable under section 324, P.P.C. read with section 149, P.P.C. and sentenced to suffer R.I. for ten years. He was also ordered to pay Rs.30,000/- fine. In case of default of payment of fine, he was to suffer R.I. for two months more. c. He was convicted for an offence punishable under section 353, P.P.C. read with section 149, P.P.C. and sentenced to suffer R.I. for two years. d. He was further convicted for an offence punishable under section 7(a) of ATA and sentenced to suffer for life imprisonment and to pay fine of Rs.50,000/-. In case of default to pay fine amount, he was to further undergo R.I. for three months more. e. Accused Muhammad Khan was convicted for an offence punishable under section 23(i)-A Sindh Arms Act, 2013 and sentenced to suffer R.I. for (07) seven years. All the aforesaid sentences awarded to the accused Muhammad Khan were to run concurrently. He was also extended benefit of section 382-B, Cr.P.C. While, the case of absconding accused 1.Mir Hassan son of Muhammad Khan Brohi, 2.Ali Dost son of Muhammad Moose Brohi,

3. Faqiro alias Faqir Muhammad son of Muhammad Saleh Brohi, 4.Chakar son of Yar Muhammad Brohi, who are fugitive from law, was kept on dormant file till their arrest.

3. The brief facts of the case of Crime No.91/2017 are that on 29.12.2017 complainant ASI/SHO Rahib Ali Bhutto lodged FIR at 7:30 am at Police Station Rustam stating therein that on the same day he along with his subordinate staff proceeded from the Police Station for patrol duty in government vehicle No.SPD-7641 in the jurisdiction vide roznamcha entry No.25 at 0400 hours. After patrolling in various places when they reached Rustam bypass, he received spy information that eight persons, armed with weapons, were standing at link road leading to village Sardar Khadim Hussain Jatoi and had blocked the road and created hindrance by keeping stones on the road with intention to commit robbery from the vehicles. The complainant communicated such information to higher authority through wireless and requested to send police personnel for help and also conveyed such information to staff and proceeded towards the pointed place. When they reached link road leading towards village Sardar Khadim Hussain Jatoi at 0600 hours meanwhile I/C Mujahid-I HC Illahi Bux, along with his staff, reached there in government vehicle. On search light they saw and identified accused, namely,

1. Faqiro alias Faqir Muhammad son of Muhammad Saleh, 2.Chakar son of Yar Muhammad,

3. Mir Hassan son of Muhammad Khan,

4. Muhammad Khan son of Sabz Ali, and

5. Ali Dost son of Muhammad Moosa armed with Kalashnikovs, all by caste Brohi resident of village Sardar Khadim Hussain Jatoi, Taluka Khanpur, and also saw three unidentified accused, who were armed with G-III rifles, were standing there and had blocked the road by placing big stones on the link road leading to village Sardar Khadim Hussain Jatoi. The accused presumed the police party vehicle as private vehicles and signaled to stop, police party stopped their vehicles, alighted and informed accused about police and asked them to surrender before the police, on which accused persons started direct firing upon police with intention to kill them, police took shelter and retaliated in their defense and encircled the accused, meanwhile during the encounter HC Abdul Majid of police picket Faizo Laro along with staff and I/C PC Amanullah along with staff of Police Station Mari reached there in government vehicle, on seeing them accused also fired upon them with intention to kill them, they alighted from the vehicle and also retaliated in their defense. Meanwhile police party saw that accused Ali Dost made direct fire from his Kalashnikov upon PC Qurban Ali with intention to kill which hit him on left side of his chest, while accused Muhammad Khan (present appellant) also made direct fire from his Kalashnikov upon PC Qurban Ali with intention to kill which hit him on left side below the shoulder, who fell down. Police party narrowed the circle and arrested present accused Muhammad Khan along with Kalashnikov while all other accused succeeded to escape away from the scene towards southern side of jungle while making firing. The encounter lasted for about 30 minutes. Due to non-availability of private mashirs, complainant appointed PC Abdul Rahim and PC Javed Ahmed as mashirs and secured the Kalashnikov and examined PC Qurban Ali of Mujahid-1 who sustained one fire arm injury on left side of chest and one below right shoulder, blood was oozing from his wounds, who had succumbed to the injuries on the spot. Thereafter police checked the Kalashnikov secured from accused Muhammad Khan and found it empty. On inquiry, accused disclosed his name to be present appellant and disclosed about the Kalashnikov to be without license/permit, therefore, the apprehended accused has also committed offence of Arms Act, 2013. Complainant then sealed the Kalashnikov on the spot in presence of mashirs and accused was arrested and such mashimama of arrest was prepared, and thereafter referred the dead body of deceased PC Qurban Ali to RBUT hospital Shikarpur for post-mortem through PC Abdullah, he also prepared Danistnama of dead body of deceased PC Qurban Ali and handed over the same to PC Abdullah, the road was cleared by removing the hindrances with help of the staff, thereafter complainant along with staff, the arrested accused and recovered property, came at the Police Station, lodged FIRs of the incident of main case bearing Crime No.91/2017 under sections 302, 324, 353, 399, 402, 148, 149, P.P.C. and 6/7 of ATA and off shoot case of Crime No.92/2017 under section 23(i)-A Sindh Arms Act against accused Muhammad Khan on behalf of state, stating therein that accused party Faqiro and others with intention to commit an offence, created hindrance on the road, attacked upon police party, deterred them from performing their lawful duties, accused Dost Ali and Muhammad Khan killed PC Qurban Ali Odho by causing straight firing upon him, and the accused also created terror and insecurity in the area.

4. The brief facts of off shout case/ Crime No.92/2017 under section 23(i)A Sindh Arms Act are that on the same date, time and place accused Muhammad Khan son of Sabz Ali Brohi was arrested after an encounter in Crime No.91/2017 under sections 302, 324, 353, 399, 402, 148, 149, P.P.C. and 6/7 of ATA Police Station Rustam District Shikarpur and one Kalashnikov along with magazine was recovered from his possession for which he had no valid license. Accordingly, a separate case, being Crime No.92/2017 under section 23(i)-A Sindh Arms Act, was registered against the accused Muhammad Khan.

5. After registration of FIRs, Inspector Akram Ali Soomro conducted the investigation, visited place of vardat on 29.12.2017 and secured empties from the place of vardat used by police as well as accused persons and prepared such mashirnama in presence of mashirs PC Abdul Rahim and PC Javed, he also secured blood stained earth of deceased PC Qurban Ali, and blood stained uniform of deceased PC Qurban, handed over by PC Abdullah. He dispatched secured Kalashnikov and empties to FSL Larkana/ballistic expert for verification, the blood stained earth as well as shirt, pant, jerky, cap and belt were also dispatched to Chemical Examiner, Rohri for chemical analysis. Thereafter investigation was conducted by Inspector Bahar Din Keerio, who, after receiving the reports of dispatched articles, post mortem report of dead body of deceased as well as photographs of place of vardat and deceased PC Qurban Ali, submitted the final report/ challan against the accused accordingly.

6. Accordingly, the above named accused were challaned to face the trial in case/Crime No. 91/2017, under sections 302, 324, 353, 399, 402, 148, 149, P.P.C. and 6/7 of ATA, 1997, Police Station Rustam, District Shikarpur before trial court on 31.1.2018 showing accused Muhammad Khan son of Sabz Ali Brohi as arrested, whereas accused namely

1. Mir Hassan son of Muhammad Khan Brohi,

2. Ali Dost son of Muhammad Moosa Brohi were shown as absconders while name of accused

1. Faqiro alias Faqir Muhammad son of Muhammad Saleh Brohi and

2. Chakar son of Yar Muhammad Brohi were kept in column 2 of challan sheet which were joined in the case vide order dated 31.01.2018 but they did not appear before the trial court, therefore, after completing formalities they were also declared as pro-claimed offenders.

7. Trial court issued NBWs against all the absconding accused but same were returned un-executed with endorsement of the process server that all accused are absconders/notorious criminals and have shifted to unknown place. The proceeding under sections 87/88, Cr.P.C. were initiated against absconding accused and proclamations in three national newspapers were made as required under section 19 subsection (10), Anti Terrorism Act, 1997 and they were declared as proclaimed offenders.

8. Police papers were supplied to appellant vide receipt at Ex.7. The learned APG for the state moved an application under section 21-M of ATA, for joint trial of accused in above two cases being connected. The application was allowed vide order dated 10.03.2018 by the trial court hence both the cases were heard together and disposed of accordingly vide the impugned judgment.

9. Since the case fell within the ambit of Anti Terrorism Act, 1997, therefore Oath was taken by the Presiding Officer as required under section 16 of Anti Terrorism Act on 10.03.2018 at Ex.9. Joint charge was framed against accused at Ex 10, to which accused pleaded not guilty and claimed to be tried. Such plea of accused recorded at Ex.10/A.

10. On account of inability expressed by the appellant to engage a counsel due to his weak financial position, Mr. Mazhar Hussain Mangrio, Advocate was appointed to plead the case of accused on government expenses at the request of accused vide order at Ex.11.

11. In order to establish its case, the prosecution has examined PW-1 complainant ASI/SHO Rahib Ali Bhutto at Ex.13, he produced departure entry of roznamcha at Ex.13 /A, mashirnama of arrest and recovery of weapon at Ex.13/B, danistnama of deceased PC Qurban Ali at Ex.13/C, lash chakas form at Ex.13/D, entry of roznamcha in respect of registration of FIR at Ex.13/E, FIR of Crime No.91/2017 under sections 302, 324, 353, 399, 402, 148, 149, P.P.C. and 6/7 of ATA at Ex.13/F, FIR of off shoot case/crime No.92/2017 under section 23(i)-A Sindh Arms Act at Ex.13/G. PW-2 PC Abdul Rahim who is eye-witness, mashir of arrest of accused, recovery of Kalashnikov, danistnama, visiting the place of vardat, recovery of blood-stained earth, empty bullets as well as recovery of blood stained uniform of deceased PC Qurban Ali examined at Ex.14. He produced mashirnama of visiting of place of vardat and recovery of empty bullets at Ex.14/A, mashirnama of securing blood stained uniform of deceased at Ex.14/B. PW-3 I.O/Inspector Akram Ali Soomro who conducted investigation examined at Ex.15. He produced copy of letter addressed to SSP Shikarpur seeking permission to dispatch the secured weapon and empty bullets to ballistic expert at Ex.15/A. PW-4 HC Illahi Bux of Mujahid-1 who along with deceased PC Qurban and other two PCs Mohkumuddin and PC Abdullah joined the police party examined at Ex.16. PW-5 PC Abdullah of Mujahid-1 who brought the deceased PC Qurban for post mortem at civil hospital and returned the same dead body after post mortem his legal heirs examined at Ex.17. He produced receipt of handing over of dead body of deceased to legal heir at Ex.17/A. PW-6 Inspector Bahar Din Keerio who also conducted investigation examined at Ex.18. He produced photographs of deceased PC Qurban at Ex.18/ A, ballistic expert report of secured weapon and empty bullets at Ex.18/B, photographs of place of vardat at Ex.18/C and Ex.18/D respectively. He also produced chemical examiner report of earth material and blood stained uniform of deceased PC Qurban issued by chemical examiner Rohri at Ex.18/E. The application of learned APG under section 540, Cr.P.C. for calling PWs namely Dr. Imtiaz Memon and Tapedar of the beat Abdul Jabbar and order thereon at Ex.19. PW-7 Tapedar Abdul Jabbar was examined at Ex.20. He produced sketch of place of vardat at Ex.20/A. PW-8 Dr. Imtiaz Ali Memon Dy. MS who conducted the post mortem of deceased PC Qurban Ali examined at Ex.21. He produced post mortem report of deceased PC Qurban Ali at Ex.21/A. Thereafter the prosecution side was closed vide statement of learned APG at Ex.22.

12. The statement of present accused Muhammad Khan under section 342, Cr.P.C. was recorded at Ex.23 in which he denied the allegation of prosecution and claimed innocence. He examined himself on oath at Ex.24. He produced certified true copy of misc. application under section 491, Cr.P.C. at Ex.24/A moved by Mumtaz Khatoon, copy of order thereon at Ex.24/B, photocopy of order passed by 3rd Additional Sessions Judge Shikarpur on the application of Mst. Mumtaz Khatoon for registration of the case at Ex.24/C, photocopy of FIR bearing crime No.5/2018 Police Station Rustam lodged by Mst. Mumtaz Khatoon against police at Ex.24/D. He also examined defense witness namely Ghulam Nabi son of Bakhsh Ali Brohi at Ex.25. Thereafter learned defense counsel closed the side of defense vide statement at Ex.26.

13. The trial Court, after hearing the arguments of the opposing sides and going through the evidence on record, convicted and sentenced the appellant as above. Hence instant criminal appeals.

14. Learned counsel for the appellant vehemently opposed the judgment impugned herein and stated that the trial Court has failed to appreciate the evidence on record and as such the judgment is result of non-reading and mis-reading of evidence. Learned counsel, referring to the contents of the FIR, stated that it is an absurd story and not believable by a prudent mind. He submitted that all the witnesses in the present case are police officials and there is no independent witness in the case to support and corroborate the case of the prosecution. Learned counsel also submitted that there are material contradictions in the evidence of prosecution witnesses which makes the case of the prosecution doubtful. It was also argued that there was undue delay in dispatch of the alleged Kalashnikov and empty bullets to FSL, Larkana for which there is no explanation. Learned counsel referred to the habeas corpus case filed by cousin of the appellant for the illegal confinement of the appellant and his wife.

15. On the other hand, learned DPG fully supported the impugned judgment and stated that the appellant was arrested on the spot and an unlicensed Kalashnikov was recovered from his possession. He submitted that in the ensuing encounter, one policeman lost his life and, therefore, the appellant does not deserve any leniency. He submitted that ocular as well as medical evidence fully supports the case of the prosecution and the prosecution has been able to prove its case against the appellant without and beyond any shadow of doubt. Therefore, he prayed that instant criminal appeals may be dismissed and the conviction and sentence awarded to the appellant may be maintained.

16. We have heard learned counsel for the appellant as well as learned DPG and have also perused the record / evidence.

17. So far as question of unnatural death of PC Qurban Ali Odho is concerned, there is no dispute about the same and, therefore, there is no need to deliberate on this point any further. However, the other points formulated in the impugned judgments require consideration.

18. We will take up Point No.3, formulated by the trial Court, first, which reads as under: "Whether present accused Muhammad Khan was appre-hended after an encounter at the spot and a Kalashnikov along with empty magazine used in the offence was secured from his possession for which he had no valid license/permit?

19. The case of the prosecution rested on ocular evidence of PWs and medical evidence as well as circumstantial evidence. The ocular evidence adduced by the prosecution consisted of PW-1, complainant /SHO Rahib Ali Bhutto (Exh.13), who deposed that on 29.12.2017 he was posted as ASI at Police Station Rustam and on the same day he along with his subordinate police officials, namely, PC Abdul Rahim, PC Javed, PC Masti Khan, PC Abdul Rehman and driver PC Asif Ali proceeded from PS for patrol duty when he received information that eight persons were standing on link road leading to Khadim Hussain Jatoi village who had blocked the road by putting stones. He informed the higher authorities about the presence of said culprits. Meanwhile HC Illahi Bux of Mujahid-1 also joined them. They challenged the culprits to surrender before the police but the culprits, on seeing police mobile, started firing upon them. They also retaliated in their defense. This eye-witness stated that he saw accused Ali Dost fired which hit PC Qurban on left side of his chest. He also saw accused Muhammad Khan (present appellant) fired upon same PC Qurban which hit him on left shoulder. The encounter continued for half an hour and thereafter they encircled the culprits and succeeded to apprehend accused Muhammad Khan on the spot whereas remaining culprits escaped away from the scene. They saw that PC Qurban, who had sustained bullet injuries, had succumbed to his injuries on the spot. He prepared such mashirnama of arrest of accused and recovery of rifle from his possession on the spot in presence of mashirs PC Abdul Rahim and PC Javed. He produced such mashirnama at Ex.13/13 and verified his signature on it. He also prepared danistnama of dead body as well as lash chakas form on the spot. He produced danistnama at Ex.13/C as well as lash chakas form at 50, 13/13 and verified his signature on them. He sealed the secured rifle on the spot. He sent the dead body of deceased Qurban Ali to Civil Hospital Shikarpur through PC Abdullah for post mortem. Thereafter they returned to PS Rustam where he lodged the FIR of the incident of main case bearing crime No.91/2017 under section 302, P.P.C. and its off shoot case of arm act bearing Crime No.92/2017 under section 23(i)-A. He thereafter handed over the FIRs to Inspector Akram Ali for investigation.

20. The prosecution also examined PW-2, PC Abdul Rahim, who was also posted at Police Station Rustam and was one of the members of the party headed by SHO Rahib Ali. He also deposed on the same lines and completely described the incident which took place on 29.12.2017. Both the complainants as well as PW-Abdul Rahim were subjected to lengthy cross-examination; however, their deposition remained unshaken, consistent and confidence inspiring as there were no contradictions therein. He produced the mashirnama of inspection of place of wardat, collection of blood stained earth from the place of wardat and recovery of empties. He also stated that the empties were sealed on the spot and stamped. He further stated the dead body of PC Qurban Ali was sent for post mortem through PC Abdullah; however, he stated that he did not remember about the number of other police constables who accompanied him. He also stated that the deceased succumbed to his injuries on the spot.

21. If contents of the FIR are examined in juxtaposition with the deposition of the PW-1/complainant Rahib Ali Bhutto and PW-2 Abdul Rahim, it would be observed that there is no contradiction between the deposition of the said two PWs and the contents of the FIR.

22. Prosecution also examined HC Illahi Bux as PW-4 (Exh.16). He was a member of the party belonging to Mujahid-I of which deceased PC Qurban Ali was also a member. He stated that during patrolling he received information from wireless control Shikarpur to provide help to SHO, Police Station Rustam/the complainant. He stated that when they reached near Village Khadim Hussain Jatoi, they saw said eight persons standing there. In cross-examination he stated that police mobiles of Police Station Mari and PP Faizo also reached the place of wardat for providing help to SHO Rahib Ali Bhutto. A suggestion was put him during cross-examination that PC Qurban Ali was killed somewhere else and the police falsely implicated the appellant Muhammad Khan; however, he denied such allegation.

23. A perusal of the above depositions of the eye-witnesses of the encounter clearly shows that there is no material contradiction therein and all these witnesses are consistent and unshaken although they were subjected to lengthy cross-examination. In this view of the matter we are of the opinion that the trial Court, while convicting and sentencing the appellant Muhammad Khan has rightly relied on the ocular evidence. There is no misreading or non-reading of the evidence.

24. A perusal of the medical evidence also shows that the same fully supports the prosecution case. In this regard reference may be made to the deposition of Dr. Imtiaz Ali Memon, Medical Officer, RBUT Hospital, Shikarpur. He was examined as PW-8 (Exh.21). He found the following injuries on the body of the deceased: "

1. One LTP wound of entry measuring 0.75 cm x diameter with inverted margin in circular in shape involved in left side of front of chest above the nipple. Wound of entry.

2. One LTP wound of exit measuring 1 cm in diameter with everted margin oval in shape present over back of chest. Exit of injury No.1.

3. One LTP wound of entry measuring 0.75 cm in diameter with inverted margin circular in shape present over right scapular area over back of chest.

4. One LTP wound of exit measuring 1 cm in diameter everted margin oval in shape present over right side of neck. Exit of injury No.1 [No.2]. On internal examination I found following damages in chest cavity. Blood vessel left lung, right lung and walk of chest cavity were found damaged at the site of injuries."

25. As per the medical evidence, the body of the deceased was carrying four injuries, two were entry points where two were exit points of the bullets. Thus, the medical evidence is also fully supporting the ocular evidence that deceased PC Qurban Ali received two fire arm injuries one at the hand of appellant Muhammad Khan and one at the hands of absconding accused Dost Ali. As stated above, unnatural death of PC Qurban Ali is not disputed by any one; however, on behalf of the accused it was suggested that PC Qurban Ali died somewhere else and the present appellant was falsely implicated in this crime. However, no reason whatsoever has been put forth for such substitution. Reliance can be placed upon the case of Kouro and 5 others v. The State (2013 YLR 1215).

26. Reference may, now, be made to the stand of the appellant that he was arrested from his home along with his wife. In this regard we examined the statement of the accused / appellant Muhammad Khan on oath recorded by the trial Court on 7th September, 2018. The appellant stated that on 29.12.2017 he was sleeping in his house with his wife when police of Police Station Rustam entered into his house and arrested him and his wife and brought them to police station. An application under section 491, Cr. Procedure Code, was moved by Mst. Mumtaz Khatoon before Sessions Judge Shikarpur for release of the alleged detenue. The said District and Sessions Judge sent raid commissioner to Police Station Rustam and the raid commissioner found Mst. Shaher Bano, wife of appellant Muhammad Khan in illegal detention, who was released on her executing PR bond. The appellant during his deposition produced the application under section 491, Cr. Procedure Code which was filed by Mst. Mumtaz Khatoon before Sessions Judge, Shikarpur, wherein detailed facts have been mentioned. In this application allegation was made that at 4-00 a.m. on 29.12.2017 police party raided their house and made firing due to which the male members of the family ran away to save their lives. However, there is no report of any person getting injured in such firing. On the same date at about 6.00 a.m. when police party again came there and entered the house of the applicant Mst. Mumtaz Begum and after allegedly ransacking their house, arrested appellant Muhammad Khan and his wife. This is very strange that when the police party alleged arrived at the same place at 4.00 a.m. and made firing, due to which the male members of the family ran away, then how they were at home immediately soon thereafter and Muhammad Khan was arrested. Prudence demanded that he would not come back to his home immediately thereafter so soon.

27. In this regard reference may be made to the deposition of DW-1, Ghulam Nabi (page 149) who stated in his deposition as under: "On 29th date 2017 I was sleeping in my house situated in village Sardar Khadim Hussain. I heard the noise of firing shot at about 4.00 a.m. (night) and I woke up and rushed towards the firing place but the police party did not allow me to go there. Thereafter, I returned to my house. On the same day at about 6.00 (morning) I came to know that accused Muhammad Khan along with his wife have been taken away by the police after setting the house of accused on fire."

28. In cross-examination admitted that he did not personally see when the appellant was being taken away but came to know through other persons. Thus, the evidence of this witness could not be relied as he was not an eye-witness because he himself states that he did not personally see Muhammad Khan being taken away by the police from his home. He clearly admits that he came to know that accused Muhammad Khan was taken away by police along with his wife.

29. The above discussion and examination of the evidence shows that though it appears that Mst. Shaher Bano was arrested from her house and, therefore, her relative Mst. Mumtaz Khatoon filed an application under Section 491, Cr.P.C. before the concerned District and Sessions Judge who arranged for a raid on the said police stations and Mst. Shaher Bano was recovered from Women Cell, Shikarpur; however, there is no evidence to prove that appellant Muhammad Khan was also arrested from his home along with his wife as in that case he would have also been recovered from the illegal detention.

30. The suggestion of the learned counsel for the appellant to PWs that PC Qurban Ali was killed by the bullet of his co-workers is not supported by any evidence. Although, a suggestion was put to the complainant that PC Qurban Ali was killed by the firing of his own police personnel, and same suggestion was put to PC Abdul Rahim, however, a different suggestion was put to PW-4 HC Illahi Bux that PC Qurban Ali was killed at some other place and the police falsely implicated the present appellant. Same suggestion was also put to PC Abdullah (PW-5). However, these suggestions were denied by the PWs. Since there is nothing on record to prove that PC Qurban Ali was killed somewhere else, on the contrary, prosecution has produced to the effect that PC Qurban Ali was killed in the encounter at the same place by taking sample of blood stained earth from the place of wardat, therefore, the trial Court was justified in rejecting the version of the defense on this point and rightly believed the deposition of PWs in this regard.

31. It is also note-worthy that first the suggestion was put to the PWs that the deceased PC Qurban Ali was killed by the own firing of the police; however, when he realized that this suggestion, in a way, is admission on the part of the learned counsel that such encounter did take place, therefore, he changed his stance and to other PWs he put a suggestion that PC Qurban Ali was killed somewhere else and thereafter his body was brought at the place of wardat. However, in this case also the onus was on the defence to show that PC Qurban Ali was killed at some other place. Albeit, there is nothing on record to prove this fact or to disprove the version put forth by the prosecution through credible ocular as well as medical and circumstantial evidence.

32. The inquest report of PC Qurban Ali reveals that the date and time of his death was 29.12.2017 at 6.20 a.m. PW-8 Dr. Imtiaz Ali, who conducted post mortem of deceased Qurban Ali, stated that he started the post mortem at 6.55 a.m. and that time rigor mortis was not developed. He further deposed that time in between death and post mortem was about one hour. All these statements fully support the prosecution case that Qurban Ali was killed in the police encounter at about 6.20 a.m. Thus, the circumstantial evidence also supports the ocular and medical evidence.

33. In this regard reference may also be made to the report of ballistic expert who has opined that the recovered bullets were fired from the rifle recovered from the appellant Muhammad Khan. Apart from this, the chemical examiner, to whom the blood stained earth recovered from the spot was sent for chemical analysis, also reported that the blood was human blood.

34. From the above evidence, produced by the prosecution, it can be safely held that the prosecution was able to establish that the deceased PC Qurban Ali was killed at the place of wardat as indicated in the FIR in this case, and was killed in the mode and manner as alleged by the prosecution, and that the appellant was apprehended at the said spot by the police.

35. The learned trial Court, after discussing the evidence on record in minute detail, observed as under: "From perusal of record it transpires that prosecution has succeeded to bring trustworthy evidence against the accused persons. All witnesses were subjected to lengthy and searching cross-examination but defense failed to shake their credibility and veracity except few minor contradictions and discrepancies which are not fatal to discard the straight forward and inspiring confidence evidence of the witnesses. No doubt prosecution has not examined any private witness but the encounter took place early in the morning on the link road and there was no private person at the time of incident. Moreover in these type of cases the people of the locality do not come forward to act as witness due to fear of the criminals therefore, the non-citing of any private person as witness has no effect on the case when the accused has not proved any enmity or ill will on the part of police to implicate him falsely in this heinous offence. The accused seems to be very clever who requested the court to provide defense advocate on government expenses. The request of accused was allowed and he was provided senior lady advocate Mrs. Shahida Memon but when the evidence of two witnesses were recorded the accused engaged his advocate who filed the power and cross-examined the remaining PWs but nothing has come on the record to disbelieve the evidence of PWs." (emphasis supplied).

36. The above findings of the learned trial Court do not suffer from any misreading or non-reading of the evidence nor does the same suffer from any legal infirmity or lacuna.

37. A minor contradiction was observed in the evidence of PWs as some stated that they saw the accused in light of headlight of the mobile and some stated that they saw the accused in the light of searchlight. This is a very minor contradiction which does not affect the outcome of the case as it can be a result of differently putting the same thing. This might be that some PWs saw the accused immediately on arrival at the place of wardat in the light of headlights of the police mobile while the others, who came afterwards, saw that the police is also using search light.

38. So far as minor contradictions and discrepancies in the evidence of the prosecution witnesses are concerned, the same with the passage of time usually take place almost in every criminal case. However, it is now well settled that such contradictions cannot be made basis for acquittal of the accused, particularly in a murder case. Honourable Supreme Court in the case of Khan alias Khani and another v. The State 2006 SCMR 1744 held as under: "It is a settled law that minor contradiction and discrepancies between testimony of eye-witnesses and that of other prose-cution witnesses in a murder case do not materially affect the testimony of eye-witnesses which otherwise appeared to be true and genuine meaning thereby the discrepancies in the statements of eye-witnesses are of no importance."

39. From perusal of the evidence, it appear that the eye-witnesses have fully implicated the appellant / accused in the commission of the alleged offence and the ocular evidence is fully supported / corroborated by medical and circumstantial evidence. Although the prosecution witnesses are police officials; however, we are mindful of the legal position that their evidence cannot be discarded merely on this ground. In the case reported as Zafar v. The State (2008 SCMR 1254) Honourable Supreme Court held as under: "The police employees are the competent witnesses like any other independent witness and their testimony cannot be discarded merely on the ground that they are police employees as laid down in the cases of Muhammad Azam v. The State PLD 1996 SC 67, Muhammad Hanif v. The State 2003 SCMR 1237, Riaz Ahmed v. The State 2004 SCMR 988 and Naseer Ahmed v. The State 2004 SCMR 1361."

40. In the present case, it is alleged that there is enmity between police and the appellant. This allegation is being substantiated by the fact that wife of the appellant was recovered by raid commissioner from illegal confinement at Women Cell Shikarpur. This can be a malfeasance on the part of the police but in the absence of any concrete proof that there was some enmity between all the police officials and the appellant, this solitary evidence cannot be relied upon to believe that there was enmity between the police and appellant Muhammad Khan which resulted in his false implication in the present case. In fact, there is nothing on record to prove that appellant Muhammad Khan was illegally arrested by the police from his home and was later on falsely implicated in the instant case. "Point No.6 "In view of my finding and reasons stated above, I have come the conclusion that prosecution has proved its case against the accused. It has also established that present accused Muhammad Khan along with his companion attacked upon police party, deterred them to perform their lawful duties and resulting one PC Qurban Ali lost his life with fire shot of present accused Muhammad Khan. It has also been proved that accused was caught hold during the encounter and a Kalashnikov was secured from his possession by the police for which he has no license. I have also sought guidance from the case law relied by both learned counsel. The case law relied by defense counsel are not applicable to this case, as the facts and circumstances of that case are totally different to this case, I am of the considered view that accused is found guilty for an offence charged with, therefore, I convict him under section 265-H(2), Cr.P.C. as under:-..."

41. In our opinion, the above finding of guilt is based on correct appreciation of the evidence and does not call for any interference by this Court as we have also considered the evidence on record and have reached a conclusion that the prosecution has proved its case beyond any shadow of doubt.

42. In view of the above discussion, we are of the considered view that the impugned judgment, rendered by the trial Court in the instant case, does not suffer from any misreading or non-reading of the evidence nor suffers from any legal or factual infirmity, calling for interference by this Court, therefore, we dismiss these appeals and maintain the impugned judgment(s). JK/M-147/Sindh Appeals dismissed.