1994 P Cr (PLP)

Date of hearing: 22nd August, 1993. The appellants Haji Audho Khan, son of Ali Muhammad Korai in Criminal Appeal No.24 of 1990 and Qurban, son of Ismail Chano in Criminal Appeal No.66 of 1989, both were tried by the learned IIIrd Additional Sessions Judge, Larkana, who by his judgment, dated 28-9-1989, convicted both the appellants under section 302/34, P.P.C. and sentenced them to imprisonment for life and fine of Rs.5,000 each or in default of payment of fine to undergo R.I. for 6 months more. In addition appellant Haji Audho was also directed to pay compensation of Rs.10,000 to the legal heirs of the deceased and in default of payment of the same to undergo R.I. for 6 months more. Both the appellants have challenged their said conviction and sentence by way of separate appeals, the same are being disposed of by this consolidated judgment. The case of the prosecution is that complainant Mahmood lodged report at Police Station Miro Khan in which he stated that he and his brother Manzoor Hussain jointly own land in Deh Hyder Chandio. On the night of 10-7-1985, it was their turn of water. They went to their lands and after watering the same, the complainant alongwith his brother Manzoor Hussain and Muhram were coming back to their houses. On the way, when they reached near the house of Ellahi Bux Chandio, it was about 12-15 a.m., when they saw two persons standing over there. His brother Manzoor Hussain had a torch which he flashed towards those two persons and enquired from (hem why they were standing there. Thereafter, one of those persons immediately fired at Manzoor Hussain, which hit him and he fell down. The other accused also fired towards the complainant side but it missed. Both these persons were not known to the complainant party, but they had clearly seen them and therefore they could identify them. On their cries Deedar, Nazir Hussain and others came but in the meanwhile, the accused persons ran away. Complainant then went to his village to narrate the facts to his father but his father had gone to the house of his relatives. Subsequently, after giving the facts to his father, he went to lodge the report. The report was recorded by A.S.I. Khair Muhammad Exh.7/A, and he himself took up the investigation of the case. He proceeded to the place of Wardat and inspected the same in presence of Mashir Moula Bux and prepared Mashirnama Exh.7/A. At the Wardat he had secured crime empties, which were also mentioned in the same Mashir nama. He then conducted the inquest of dead body of Manzoor Hussain as Exh.17/B. The torch was also produced before him which was secured under memo. Exh.17/C. The foot prints test was also held under memo. Exh.17/E. As the two accused were suspected of having committed this offence, therefore, on 1-8-1985 both of them were detained and within a couple of hours, identification test was got held through Assistant Mukhtiarkar Mr. Muhammad Chuttal under Mashirnama Exh.14/A. Both the accused were identified by the complainant and P.W. Muhram. It was on the basis of identification that both the appellants were formally arrested in this case under memo. Exh.17/F. Both the accused were interrogated by the police and on the following day accused Haji Audho produced his licensed gun, which yeas secured under memo. Exh.17/G while co-accused Qurban led to the recovery of an unlicensed gun, which was secured under memo: Exh.17. The Investigating Officer sent both the weapons and the crime empties recovered from the Wardat to ballistic expert, the said report was produced by him in Court as Exh.18/B. After completion of the investigation, both the appellants were challaned. At the trial the prosecution examined 9 witnesses. The statements of both the appellants, were recorded under section 342, Cr.P.C. as Exhs.20 and

21. Both of them denied the prosecution allegations, and claimed to be innocent. However, both of them neither wanted to examine any defence witness nor wanted to be examined on oath. After the conclusion of the case, the trial Court convicted and sentenced the appellant as already mentioned hereinabove. The conviction was based by the trial Court on ocular evidence, supported by strong pieces of circumstantial evidence, such as recovery of a gun, identification test of the appellants and the production of torch, I have heard Mr. Sajjad Hussain Kolachi, learned counsel for the appellant Qurban while Gul Bahar Korai, learned counsel for appellant Haji Audho chose to remain absent without any intimation, though he is a local Advocate of Sukkur. Learned counsel for appellant Qurban submitted that the only evidence of P.W.1 Mahmood and P.W.5 Muhram is not sufficient as they are interested witnesses. He next submitted that the report of the ballistic expert should not have been considered as the articles were sent with considerable delay. He lastly submitted that the evidence of test identification is of no consequence as the same was not held according to the rules inasmuch as 9/10 dummies were not mixed with each accused with the result, the line contained only 15 dummies. Mr. Abdul Sattar Chohan, learned counsel appearing for A.A: G. for the State, supported the conviction of the appellants on the ground that there is overwhelming evidence on the record which has been rightly relied upon by the trial Court. I have carefully considered the points raised by the learned counsel and I have also gone through the entire evidence available on record. It may be mentioned that there is no enmity whatsoever, and therefore, there is no reason for the complainant party to implicate the accused falsely. Both the witnesses P.W. Mahmood and P.W. Muhram have specifically mentioned that they were coming back from the land when they saw two persons standing near the house of Ellahi Bux Chandio. At that time, deceased Manzoor Hussain had a torch which he flashed on those two persons and on torch light, they have seen those two persons very clearly and that they could identify the accused if they were produced before them. It may be mentioned that the torch in question appears to be a heavy duty torch as it operates on 3 cells. Such a torch obviously could emit a powerful beam and therefore both the witnesses had the opportunity to see the faces of the assailants. It may be mentioned that both accused were initially suspected by the police and they were detained on 1-8-1985. Firstly their footprints test was held and within two hours, a regular identification parade was held before P.W.6 Assistant Mukhtarkar Muhammad Chuttal. In this identification test both the eye witnesses Mahmood and Muhram correctly picked out both the accused from line of 15 dummies. It is only after identification parade was held that both thip accused were arrested in this case under Mashirnama Exh.17/F, which was attested by P.W.8 Mashir Moula Bux. Both the accused persons were interrogated by the police and they led the police to the recovery of their respective guns which were secured and sealed by the police in the presence of the same Mashir Moula Bux. At the initial stage, when the Investigating Officer A.S.I. Khan Muhammad visited the place of Wardat, he also secured crime empties, which were sealed at the spot and were seized under Mashirnama of Wardat Exh.17/A, duly attested by the Mashir. The crime empties as well as the two guns were subsequently sent to the ballistic expert who has opined that one crime empty was fired from the gun, recovered from appellant Haji Audho while the other crime empty was fired from the gun recovered from appellant Ourban. The evidence of recovery and the report of E the ballistic expert is a very strong piece of circumstantial evidence which fully supports the evidence of the two eye-witnesses. The ocular account is further corroborated by the medical evidence. The medical officer has detected the fire-arm injures on the person of deceased Manzoor Hussain. It will thus appear that there is overwhelming evidence against the appellants on record. No doubt there is some delay in sending the crime articles to the expert but delay simplicitor will not be enough to discard the evidence of recovery or the 8 ballistic report. If the defence wanted to take any benefit of the same, it was required to show tampering of the articles or dishonest investigation and in this regard, the Investigating Officer, who has been cross-examined, no such question was put to the Investigating Officer and, therefore, merely on the ground of delay, this piece of evidence cannot be ruled out. So far as identification evidence is concerned, there were 15 dummies mixed with two accused persons and the required number of dummies should have been

18. It may be mentioned that the real test is the identification of the accused in Court at the time when the witnesses are testifying. Both the witnesses have identified the accused in Court. The accused have not examined themselves on oath nor they led any evidence in defence. In the circumstances, I am of the considered view that both the appellants have been rightly convicted by the trial Court. In the light of my above discussion, I do not find any merits in these IE appeals and both appeals are accordingly dismissed. N.H.Q./Q-82/K Appeals dismissed.