1994 P Cr (PLP)

Date of hearing: 16th August, 1993. Appellant Ali Ahmed son of Shafo alongwith two others were tried by the learned 1st Additional Sessions Judge, Kandhkot, who by his judgment, dated 16-5-1991 convicted the appellant under section 302/34, P.P.C. and sentenced him to imprisonment for life and fine of Rs.20,000 and in default of payment of fine to undergo R.I. for three years more. The appellant was further convicted under section 13-D of the Arms Ordinance and sentenced to R.I. for two years and fine of Rs.500 or in default of payment of fine to undergo R.I. for six months more. By the same judgment co-accused Zangi and Ali Hassan were acquitted. The appellant has challenged his said conviction and sentence in this appeal. The case of the prosecution is that complainant Allah Rakhio lodged report at Police Station Kashmore in which he stated that about 2 months ago accused Ali Ahmed had made allegations against his son Manzoor for having illicit relations with his wife Mst. Inayatan. In this regard a Faisla was made but it was not finalized. On the day of incident, the complainant alongwith his nephew Muhammad Sharif and deceased Manzoor went to the village of Khosas for taking paddy straw. At about noon time, when they were proceeding to their village after loading the said material in the bullock-cart, they took some time, when they crossed the house of Muhammad Nawaz Khoso at 4 p.m. they saw accused Ali Ahmed armed with a gun, armed with Lathi and Ali Hassan armed with Lathi. Accused Ali Hassan gave Hakal to move aside as they will kill Manzoor, who is Karo with his wife. Thereafter, Ali Ahmed fired at Manzoor, which hit him on his face and he fell down. On their cries and fire-arm report P.W. Muhammad Nawaz also came there. Thereafter all the accused persons went away. They saw that Manzoor had fire-arm injuries on his eye, he was bleeding and had expired. The complainant then went and lodged the report, which was recorded by P.W.7 Additional S:H.O. Mumtaz Ali. The Investigating Officer accompanied the complainant to the place of Wardat, which was situated near the house of Muhammad Nawaz Khoso in Deh Sarrah. He found the dead body of deceased Manzoor and prepared Mashirnama of Wardat in presence of the witnesses Allah Dino and Abdul Ghafoor Exh.19. He also prepared inquest report of the dead body of Manzoor as Exh.20. From the place of Wardat he secured one empty cartridge, which was secured and sealed at the spot. Thereafter, he recorded the statements of witnesses and sent the dead body of the deceased to the medical officer for post-mortem examination. On 17-3-1983, he arrested all the three accused in the presence of same Mashirs under Mashirnama Exh.21. On his interrogation, accused Ali Ahmed led the police to his house from where a gun was secured, which was concealed in bushes. The gun was sealed in the presence of same Mashirs under memo. Exh.22. The other two accused produced Lathis, which were also secured under Mashirnama Exhs.23 and

24. He had sent the gun and empty cartridge recovered from the Wardat to the ballistic expert, who had opined that the empty was fired from the said gun. He has produced the report as Exh.29. After completing the investigation, he submitted the challan. The three accused were charged for having committed the murder of deceased Manzoor Ahmed to which they did not plead guilty and claimed to be tried. The prosecution examined three eye-witnesses namely P.W.1 Allah Rakhio, P.W.3 Muhammad Sharif and P.W.4 Muhammad Nawaz. P.W.5 Agha Noor Ahmed is the medical officer who conducted the post-mortem examination. P.W.6 Allah Dino is the Mashir under whose presence, the recovery was made. P.W.2 Muhammad Hayat is the Tapedar and P.W.7 Mumtaz Ali is the Investigating Officer. After conclusion of the case, the statements of the accused were recorded under section 342, Cr.P.C. The statement of appellant Ali Ahmed is Exh.31. He has denied the prosecution allegations and has claimed to be innocent. He has also denied the recovery of gun from him. However, he did not want to examine any defence witness nor wanted to be examined on oath. After the conclusion of the trial, the appellant was convicted and sentenced by the trial Court while the two co-accused were acquitted as already mentioned hereinabove. I have heard the learned counsel for the appellant and so also the learned counsel for the State. The learned counsel for the appellant has raised four points. He states that the charge was defective. Secondly the ocular account is based on interested witnesses and that the recovery of empty from the place of Wardat is doubtful, lastly there is no motive in this case. On the other hand, learned counsel for the State Mr. Abdul Sattar Chohan has supported the conviction of the appellant on the ground that there is ocular evidence and whatever doubt was there in respect of the said witnesses, the same is removed by corroborated evidence of recovery and ballistic report. I have carefully considered the arguments of the learned counsel. There are three eye-witnesses in this case. P.W.1 Allah Dino he is the uncle of deceased Manzoor Ahmed. The other witness Muhammad Sharif P.W3 is the son of his sister, but the third witness namely Muhammad Nawaz is not related to him as there is no such indication in the evidence of the complainant. But P.W. Muhammad Nawaz himself has admitted in the cross-examination that complainant Allah Rakhio is his maternal-uncle. It will thus appear that the three eye-witnesses are closely related to each other, they are also related to the deceased. The suggestions, which have been made to the witness in his cross-examination is to the effect that he was deposing falsely as the complainant was his maternal-uncle. Similarly in the cross-examination of P.W.3 Muhammad Sharif suggestion is that he was deposing against the accused persons, as he was relative of the complainant. All the three witnesses in their examination-in-chief have very clearly mentioned that on the day of incident they were going back to their village with paddy straw, when on the way near the house of Muhammad Nawaz Khoso, the accused persons came there and at that time accused Ali Ahmed was armed with a gun while the rest of the accused were armed with Lathis. Immediately accused Ali Ahmed had given Hakal to deceased Manzoor that he was Karo with his wife and thereafter he shot him. The evidence of the three eye-witnesses is corroborated by the medical officer P.W.5 Dr. Agha Noor Ahmed, who has deposed that the dead body was forwarded to him and on his examination, he found lacerated type punctured wound over the right eye brow and right eye was completely damaged. He had detected fracture of the parietal bone of the right side. He saw clotted blood over the brain substance: He has also secured a pellet. It will thus appear that the medical evidence supports the ocular account to the effect that the deceased had received a fire-arm injury from a gun. The appellant was arrested on 17-3-1983, and thereafter in the presence of Mashirs Allah Dino and Abdul Ghafoor he led the police to his house and from the bushes near his house, he produced a country-made .12 bore gun, which was secured by the police under Mashirnama Exh.22. As per the Mashirnama of Wardat Exh.19, the police had secured one empty shell of .12 bore. The said crime empty and the gun recovered from the appellant were sent to the ballistic expert by the Investigating Officer whose report is at Exh.19. The said report clearly indicates that the alleged crime emtpy was fired from the gun, which was recovered on the pointation of accused/appellant. Thus, the evidence of the eye-witnesses is strongly supported by the evidence of recovery and the report of the ballistic expert. Moreover, the version given by the eye-witnesses is also supported by the fact that when the police officer visited the place of Wardat, he had found that a bullock-cart was standing at the spot, which was loaded with paddy-straw. In circumstances, there is overwhelming evidence against the appellant, and the points raised by the learned counsel for the appellant do not effect the evidence on record. It may be mentioned that defect in the charge, if any, will be of no consequence as under section 537, Cr.P.C., the accused has to show how he is prejudiced and furthermore whether he took this objection at the earliest opportunity or not. The learned counsel for the appellant could not satisfy as to how the appellant was prejudiced. So far as the ocular evidence is concerned, it is now well-settled that merely because the witnesses are inter-related or related to the deceased that by itself will not be sufficient to discard their evidence. So far as motive is concerned, the prosecution is not required to set up any motive. But in the present case, the motive has been set up right from the initial stage and i.e. the appellant Ali Ahmed had killed deceased Manzoor Ahmed, as he had declared him to be Karo with his wife. It will thus appear, that the defence of the appellant does not lead anywhere with the result, the prosecution evidence remains unaffected. The evidence of the three eye-witnesses is straightforward and confidence inspiring. The defence has not been able to show there was any enmity between the parties. The ocular account is strongly corroborated by the evidence of recovery of a gun and ballistic report, which clearly indicates that the gun. recovered at the instance of appellant Ali Ahmed was used in the commission of this offence as crime empty recovered from the spot has matched and found to have been fired from the said gun. The medical evidence also corroborates the ocular account. The two co-accused namely Zangi and Ali Hassan who are alleged to be armed with Lathies have been acquitted out of abundant caution. In the circumstances of the case, I have reached the conclusion that the conviction of the appellant has been properly recorded. In the light of my above discussion, I do not find any merits in this appeal, and the same is accordingly dismissed. N.H.Q./A-1397/K?????????????????????????????????????????????????????????????????????????????? Appeal dismissed.