2022 PLP 96 (YLRN)

MUHAMMAD SALEEM JESSAR, J.

Being aggrieved by and dissatisfied with the Judgment dated 07.09.2018 passed by learned VIth Additional Sessions Judge Karachi East in Sessions Case No.1030 of 2011 (re- State v. Muhammad Wajid and others), emanating from FIR No.62/2011, registered at Police Station Khokhrapar under sections 392, 397, 302/34, P.P.C., whereby he convicted appellants Muhammad Wajid, Muhammad Zafar Baig and Ghulam Abbas under section 265-H(ii), Cr.P.C. for offence under section 392, P.P.C. and sentenced them to undergo R.I. for 10 years each and to pay fine of Rs. 20,000/-(Twenty Thousand only) each and in default in payment of fine, to undergo simple imprisonment for one month more. The appellants Muhammad Wajid, Muhammad Zafar Baig and Ghulam Abbas were further convicted for offence under section 302(b), P.P.C. as Ta'zir and sentenced to suffer rigorous imprisonment for life and to pay compensation of Rs.1,00,000/- (Rupees One Lac only) each as provided under section 544-A, Cr.P.C. and amount of compensation, if recovered, was ordered to be paid to the legal heirs of deceased and in case of default in payment of compensation, the accused were to undergo six months simple imprisonment more. However, the appellants were extended benefit of Section 382-B, Cr.P.C. It was further ordered that all the sentences shall run concurrently. The appellants have preferred instant criminal appeal against said judgment.

2. Concise facts of the prosecution case are; that complainant Mst. Parveen Rehan lodged FIR bearing No. 62/2011, at Police Station Khokhrapar, Karachi, stating therein that on 02.02.2011 at about 0745 hours she was available in her house when her husband Muhammad Rehan came back after leaving the children at school. Her house is situated at the first floor of the building whereas, at the ground floor there was a small factory of thread which was run by her husband where in one room there was the office of the said factory and in the remaining portion machines were installed. After returning back from the school her husband Muhammad Rehan opened said small factory, nephew of Muhammad Rehan, namely, Wajid had already come inside the factory and he was standing on the machine. Her husband came back and they both started taking breakfast. Meanwhile, Wajid called complainant's husband that some purchasers had come inside the factory. On such call her husband went to the ground floor towards factory but within a few moments he came back to house and at that time two persons had pointed gun at him. Wajid was also accompanying them. They came inside her bedroom, on her inquiry Wajid cautioned her to be silent and tried to close the door of our bedroom. Thereafter, armed persons made her husband to sit on bed and out of them one person, who was wearing a helmet, pointed his gun on her head. Thereafter, commotion was raised and her daughter Hira Kiran came there and then Zaffar started to take out our house hold articles and put same into bag and also took out her gold earrings. Then she and Rehan were made to stand inside the room and then they went inside the room and then they dragged Rehan and went on ground floor where factory machines are installed. She and her daughter Hira Kiran also raised cries at stairs, meanwhile accused Zafar and Wajid got hold of her husband Rehan and accused Abbas fired upon him and then two accused persons fled away along with robbed articles, whereas Wajid remained there. Thereafter, her daughter Hira Kiran called her uncle Irfan that her father had received bullet injury. Thereafter, brother of deceased arrived on call of her daughter and he shifted injured to Sindh Heart Hospital where doctor advised him to take injured to Jinnah Hospital and then he took the injured to Jinnah Hospital where doctor informed him that the injured had expired. The police of Police Station Khokhrapar came at the hospital and prepared memo of inspection of dead body of deceased Muhammad Rehan and prepared inquest report of deceased under Section 174, Cr.P.C. Investigating officer ASI Niaz Ahmed submitted letter to MLO to conduct postmortem to ascertain the cause of death of the deceased. After conducting postmortem of the deceased Muhammad Rehan, the investigating officer handed over dead body to the brother of deceased namely Muhammad Irfan. Thereafter, he came back at Police Station and on the basis of his statement under Section 154, Cr.P.C, FIR No. 31/ 2011 was got registered against unknown persons under sections 302/324/34, P.P.C. However, the complainant was dissatisfied with the facts of FIR No. 31/2011, therefore, on 05.03.2011, she lodged second FIR bearing No. 62/ 2011, against the accused Muhammad Wajid, Muhammad Zafar Baig and Ghulam Abbas at Police Station Khokhrapar wherein she narrated facts as mentioned above.

3. Both, Crime No. 36/2011 as well as Crime No. 62/2011, were investigated by Inspector Muhammad Hussain who submitted separate charge sheets in both crimes and learned Magistrate after taking cognizance sent up both cases to the Court of Session. Both Sessions Cases bearing Nos. 301/2011 and 1030/2011 were transferred to the trial Court for disposal in accordance with law.

4. After supplying necessary documents to accused Muhammad Wajid, Ghulam Abbas and Muhammad Zafar Baig vide Ex-3, a formal charge was framed against them vide Ex-4, and pleas of accused were recorded vide Ex.4/A to Ex.4/C in which they pleaded not guilty and claimed for trial.

5. The prosecution in support of its case examined ASI Niaz Ahmed as PW-1 at Ex.5, who produced attested photocopy of order dated 24.02.2011 at Ex.5/A, statement of Mst. Parveen Rehan at Ex.5/B, copy of CNIC of complainant Mst. Parveen Rehan at Ex.5/C and F.I.R at Ex.5/D. Complainant Mst. Parveen Rehan was examined as PW-2 at Ex.6. She produced memo of identification of articles at Ex.6/A. PW-Hira Kiran was examined as PW-3 at Ex.7. ASI Arshad Hussain Warsi was examined as PW-4 at Ex-8, who produced memo of arrest and recovery at Ex.8/A. PW-Muhammad Irfan was examined as PW-5 at Ex.9. He produced memo of inspection of dead body at Ex.9/A, inquest report at Ex.9/B, letter at Ex.9/C, memo of site inspection at Ex.9/D, FIR at Ex.9/E, memo at Ex.9/E, memo of arrest at Ex.9/F, memo of recovery and seizure at Ex.9/G, memo of recovery and seizure at Ex.9/H. ADPP for the state filed statement for given up the PW Muhammad Javed Rehmani at Ex.10. PW-SIO Muhammad Hussain was examined as PW-6 at Ex.11, he produced memo of recovery at Ex.11/A, letter addressed to FSL examiner at Ex.11/B, FSL report at Ex.11/C, letter addressed to themical examiner at Ex.11/D, report of chemical examiner at Ex.11/E and memo of arrest of accused persons at Ex.11/F. ADPP for the state filed statement for given up the PW-Muhammad Subhan at Ex.12. PW-Dr. Syed Farhat Abbas was examined as PW-7 at Ex.13, he produced request letter for conducting the postmortem and issuing the certificate for cause of death at Ex.13/A, PM report No. 87/2011 at Ex.13/B and death certificate at Ex.13/C. Learned ADPP for the State filed statement for closing the side of prosecution at Ex.14.

6. After conclusion of prosecution evidence appellants Muhammad Zafar Baig, Ghulam Abbas and Muhammad Wajid were examined under section 342, Cr.P.C. vide Exhs.15, 16 and 17 respectively wherein they denied prosecution allegations and claimed to be innocent. However, they declined to record their statements on oath as provided under section 340(2), Cr.P.C. They also declined to produce any witness in their defence. The trial Court framed following points for determination.

1. Whether, the deceased Muhammad Rehan died an unnatural death?

2. Whether accused had committed robbery in house of the deceased and while committing robbery murdered to the deceased with their common intention at relevant date, time and place as alleged in the charge?

3. What offence if any has been committed by the accused?

6. After answering Points Nos. 1 and 2 in affirmative, learned trial Court, vide impugned judgment, convicted and sentenced the appellants as above. The appellants have impugned said judgment by filing this criminal appeal.

7. Learned counsel for appellants submitted that there are two FIRs in this case: first FIR No.36/2011 was registered by brother of deceased Rehan against unknown persons, which was subject matter of Sessions Case No.301/ and, after 31 days of incident, widow of deceased Rehan filed Miscellaneous Application before Ex-Officio Justice of Peace and got directions to get her case registered, therefore, second FIR No.62/2011 was also registered and after challan it was instituted as Sessions Case No.1030/2011. He further submitted that I.O. had failed to produce relevant entries by which he had left the police station and without production of certain important documents, entire case becomes doubtful; hence, appellants are entitled to be acquitted. He further submitted that offensive weapon were allegedly shown to have been recovered from appellant(s) and a separate case under the Arms Ordinance, 1965 was registered against the accused in which appellants have been acquitted. He also submitted that 161, Cr.P.C. statements of prosecution witnesses were also delayed and entire evidence of prosecution case is full of contradictions and discrepancies, hence, impugned judgment suffers from illegality as well as infirmity and is liable to be set-aside. He, therefore, prayed for acquittal of the appellants. In support of his contentions, learned counsel for the appellants has placed reliance on the following cases: (i) Mour and 4 others v. The State (2016 PCr.LJ 1706), (ii) Rahim Bakhsh v. The State (2010 PCr.LJ 642), (iii) The State v. Safdar and others (2002 MLD 1698), (iv) Sameer v. The State (2018 PCr.LJ Note 128), (v) Muhammad Mansha v. The State (2018 SCMR 772), (vi) Air Weapon Complex through DG v. Muhammad Aslam and others (2018 SCMR 779) (vii) Muhammad Asif v. The State (2017 SCMR 486) and (viii) Mehmood Ahmed and 3 others v. The State and another (1995 SCMR 127).

8. Conversely, learned Deputy Prosecutor General, Sindh appearing for the State, opposed the appeal and submitted that delay in lodgment of FIR was fully explained by the complainant of the second FIR as, after demise of her husband, the complainant was sitting in Iddat. However, as soon as she came to know about lodgment of FIR by the brother of the deceased against unknown culprits, she filed an Application before Ex-Officio/Justice of Peace for lodging of her FIR, therefore, the delay in lodging second FIR was not wilful or deliberate. Learned DPG further submitted that robbed articles have also been shown to have been recovered from possession of the appellants which connects them with the commission of alleged offences. She further submitted that the offence being of heinous in nature, thus, minor contradictions which according to her, have occurred due to passage of time, cannot vitiate the evidentiary value of prosecution case. She, therefore, submitted that impugned judgment does not suffer from any illegality or infirmity and appeal being meritless, is liable to be dismissed. She prayed for dismissal of the appeal. However, learned Deputy Prosecutor General, Sindh pointed out that statements of appellants under Section 342, Cr.P.C. were not recorded in consonance with the provisions of Section 364(2), Cr.P.C., therefore mandatory requirement of the law has not been complied with, therefore, she prayed for remand of the case for retrial from the stage of statement under Section 342, Cr.P.C.

9. Prosecution allegations against the accused/appellants are that while committing robbery in house of the deceased, they committed murder of deceased Rehan. On this point case of prosecution was based on ocular testimony of witnesses, medical as well circumstantial evidence, recovery of robbed articles on the pointation of accused and recovery of empties from the place of incident.

10. Complainant, namely, Mst. Parveen Rehan is the most important eye-witness in this case. According to her, entire episode took place in her presence and she saw same right from beginning to till its end i.e. from the point of entry of the appellants in her house from the factory and then till the appellants dragged deceased Rehan down from first floor and fired upon him and then fled away. She was examined at Ex.6. She narrated entire occurrence in full details. She was also cross-examined by learned counsel for the appellant(s) at length; however, I find that her deposition is consistent, confidence inspiring and unshaken. The cross-examination also deals with the lodging of two FIRs and delay in filing of the second FIR. I will discuss this aspect of the case at appropriate place in this judgment. However, so far as the occurrence is concerned, I do not find any contradiction in the deposition of this ocular account. On the contrary, deposition of the MLO lends full corroboration to the deposition of the complainant with regard to time of the incident as well as distance from which one of the appellants fired at the deceased.

11. The second eye-witness of the case is daughter of the deceased, namely, Hira Kiran who. was examined as PW-3 at Exh.7. She also narrated entire episode with clarity and confidence. She came in picture after entry of the appellants in bed room of the complainant on first floor from the factory below. She stated that she was sleeping in her room which was adjacent to the room of her mother and she woke up due to some commotion and saw the appellants. Rest of her deposition is in complete consonance with deposition of her mother. Both, the complainant as well as her daughter P.W. Hira Kiran, fully recognized the culprits in the Court. PW Hira Kiran was cross-examined by learned counsel for the appellants but nothing could be extracted from her which could go in favour of the appellants. It was suggested to her that she did not see the incident and she is deposing falsely but she denied both these suggestions. This witness, being real daughter of the deceased, was a natural witness as the crime took place inside their house and no one from outside is expected to see the incident. On perusal of deposition of these two eye-witnesses i.e. the complainant and her daughter Hira Kiran, I find that there is no contradiction in between the depositions of these two eye-witnesses. Their deposition is confidence inspiring and worthy of reliance for recording conviction.

12. The case of the prosecution is further corroborated by the recovery of robbed articles. PW-Muhammad Irfan deposed as under: "Thereafter SHO called me again and directed me to come at Khokhrapar No.2 on 10-02-2011, at about 1:30 pm and in the mobile, two accused persons were sitting therein and I along with my cousin also sit into the mobile then we had gone at the house of Ghulam Abbas, who had led the police party at the upper floor of his house and opened a cupboard and he produced the robbed articles consisting digital camera, golden ear rings, bangles, and he informed that he had spent the cash Rs.9000/-, which was also robbed and he had also produced a pipe gun lying under the foam and 05 cartridges also available with the gun. Police had sealed the cartridges and pipe gun- in my presence and obtained my signature on it and police had also prepared the memo of recovery and seizer at the spot and obtained my signature on it. I produce such memo at Ex-9/G, which is same, correct and bears my signature. Thereafter we had gone at the house of accused Zafar situated at Khokhrapar Christian Colony, he led the police party inside the house and he also produced the robbed articles consisting one locket, ring, and liter pistol and another pistol and probably 15 bullets and police had sealed the stuffs in my presence and obtained my signature on the sealed bags and also prepared the memo of recovery and seizer. I also produce such memo at Ex-9/H, which is same, correct and bears my signature and accused Zafar also produced the motorcycle. I.O. had recorded my statement under section 161, Cr.P.C. I see the accused Wajid, Zafar and Ghulam Abbas present in the court are same. Thereafter, she lodged her own FIR as she was eye-witness of the incident."

13. From the above deposition it is crystal clear that both the appellants, namely, Zafar and Ghulam Abbas led the police party to the place from where the robbed articles were recovered. During cross-examination also this witness firmly stated that robbed articles were recovered from the house of the appellants Abbas and Zafar. A suggestion was made by learned counsel for the appellants that accused Abbas was living in a rented house and the wife of the landlord was present at the time of recovery of robbed articles which proves that the robbed article were recovered from the house of said appellant. This witness clearly admitted in his deposition that he was not an eye-witness of the incident. His truthfulness can be gauged from the fact that though his brother was murdered by the appellants; however, he did not make any false claim in his FIR and simply narrated the facts without any exaggeration.

14. Learned counsel for the appellants submitted that there are two FIRs in respect of instant case and that there is delay in filing FIRs which proves consultation and deliberation on the part of the complainant. One FIR was lodged by the brother of deceased against unknown persons while other was lodged by the widow of the deceased against the appellants. This aspect of the case has been discussed in the following words by the trial Court: "So far as delay in lodging of first FIR No. 36/2011 is concerned it is evident that the incident occurred in the house of complainant Mst. Parveen Rehan and her husband was shot by the accused persons while committing the robbery and fired upon the deceased Muhammad Rehan. The widow of deceased, Mst.Parveen Rehan and her daughter Hira Kiran were only available in the house and complainant Mst.Parveen Rehan shifted the deceased to the hospital. Naturally she could not lodge FIR and there was no any male member in the house. It is also admitted fact that the accused Wajid who was involved in the commission of offence and who was real maternal nephew of the deceased Muhammad Rehan. The lady Mst. Parveen Rehan due to sudden death of her husband could not approach to the police and lodged FIR. The complainant Muhammad Irfan who lodged the FIR No. 36/2011 against unknown persons and it is admitted fact that Muhammad Irfan who is real maternal uncle of accused Wajid and brother of deceased Muhammad Rehan lodged the FIR but he had not given the name of present accused Wajid and other accused in the FIR being a close relationship with the accused Wajid. The complainant Muhammad Irfan had not nominated him in the FIR and said fact came into knowledge of widow of deceased complainant Mst. Parveen Rehan, she being dissatisfied and approached to the police for lodging FIR as she was eye-witness of the incident and the robbery and murder of the deceased Muhammad Rehan was committed by the accused in her presence but her version was not recorded properly by the police officers and then she approached to the Court of Session and received the orders from the Court of Session and then on her statement the second FIR was lodged by the police and after investigation the case was challaned against the accused. In my view the delay has been properly explained by the complainant Mst. Parveen Rehan and when she came to know that the first complainant Muhammad Irfan wanted to save his maternal nephew and lodged FIR against unknown persons. The complainant Mst. Parveen Rehan was also cross-examined by the defense counsel but nothing has been brought on the record that there was any enmity of the complainant with the accused persons to involve them in such a heinous offence. Hence, I find no weight in the contention of the learned counsel for the accused."

15. From perusal of the record it transpires that brother of the deceased, namely, Muhammad Irfan, who lodged first FIR, was not an eye-witness of the incident as the daughter of the deceased called him after the deceased had already sustained fire arm injury. He was called for removing the injured to the hospital. However, when the injured was rushed to the emergency of JPMC, he was declared dead by the doctor. At that stage, the police of the concerned police station reached the hospital and recorded his statement under section 154, Cr.P.C. As Muhammad Irfan was not an eye-witness of the incident, as such he did not nominate anybody in the FIR in the commission of murder of his brother. However, when widow of the deceased, i.e. the complainant Mst. Parveen Rehan, who was sitting in Iddat, came to know that a wrong FIR had been lodged by her brother-in-law (brother of her deceased husband) against unknown culprits, then she tried to lodge her FIR. She approached the proper forum by filing appropriate application before the Ex Officio Justice of Peace and after obtaining orders for lodging her FIR, she approached the relevant police station for implementing such orders. Evidently, the first FIR was not properly lodged as the complainant of that FIR was not an eye-witness of the incident and, in fact, he should have waited for her sister-in-law i.e. wife of his deceased brother to have lodged the FIR, being eye-witness of the incident. Keeping in view the peculiar circumstances of this case, I find that the filing of two FIRs and the delay in filing of second FIR by widow of the deceased is fully explained and on account of such delay and filing of the second FIR in the case, it cannot be said that said (second) FIR was lodged after consultation. The second FIR was rightly lodged by the complainant being eye-witness of the murder and the delay occurred due to circumstances beyond her control. I am of the view that finding(s) given by learned trial Court on these points is / are completely justified and unexceptionable.

16. In fact, by virtue of provisions of Article 71 of Qanun-e-Shahadat Order, 1984, wife of the deceased or at least daughter of the deceased, who also claim to have witnessed the alleged incident, should have been the complainant and not the brother of the deceased whose evidence was hearsay, therefore, subsequent FIR lodged by deceased's widow, Mst. Parveen Rehan, was in accordance with the law.

17. The trial Court has also elaborately dealt with defence plea about the delay in lodging of FIR, as stated above, and I am in full agreement with such finding of trial Court on this point. Even otherwise, mere delay in lodging of FIR, is not fatal to the prosecution case. In this connection, reference may be made to the recent case of Muhammad Mumtaz v. Muhammad Ramzan reported in 2020 YLR 391 [Federal Shariat Court], wherein it was held that mere delay in lodging FIR is not fatal; however, where circumstances give rise to deliberation and consultation the delay cannot be taken lightly. In the instant case, the complainant Mst.Parveen Rehan, being widow of the deceased, was head of the family after death of her husband, i.e. the deceased, and along with her only her daughter Mst. Hira Kiran was residing and there was no male member in the family, therefore, question of consultation and deliberation does not arise.

18. In another case reported as AMB v. State (2020 YLR 300 [Federal Shariat Court]) it was held that delay in lodging FIR being not a result of any manipulation could be ignored subject to its veracity and truthfulness with regard to identity of the accused-appellant and other aspects of the events. In this view of the matter, the delay in lodging the FIR, in the peculiar circumstances of the instant case, could not be declared as fatal to the prosecution case;

19. Learned counsel for the appellants further submitted that I.O. of the case failed to produce relevant roznamcha entries by which he had left the police station and without production of such important documents entire case became doubtful. Non-production of the entries with regard to departure and arrival can be termed an irregularity and can be pressed into service when there are other circumstances which create doubt in the prosecution case. However, in present case the ocular testimony coupled with medical and circumstantial evidence, so also recovery of robbed articles made from the accused, is so strong and unimpeachable that such irregularity cannot be made basis for setting aside the conviction and sentence. A person was murdered in broad day light before and within sight of his wife and daughter, who saw entire incident with their own eyes. Even their own relative i.e. nephew of the deceased, is also involved by them in the commission of said murder, which shows that they have not spared their own relative and have nominated him in the crime. Irregularity, if any, was committed by the police; however, this irregularity is not of such a nature which could create doubt in a prudent mind. Besides, it also does not appeal to mind that as to why a widow and a real daughter would spare the actual murderers of his husband and father respectively and instead would implicate some innocent persons, particularly knowing well that undergoing process of handling a criminal case is not an easy task, more particularly for household ladies.

20. Learned counsel for the appellant further submitted that offensive weapons were allegedly recovered from appellant(s) and in that case under the Arms Ordinance, appellants have been acquitted of the charge. So far as this aspect of the case is considered, in present case, entire evidence leads to one inevitable conclusion that the deceased was murdered by the appellants. It seems that the appellants were only interested in committing robbery; however, when Abbas removed his helmet and was recognized by the deceased, at the spur of the moment, they decided to finish him off in order to eliminate such strong piece of evidence. However, he was also recognized by the widow and daughter of the deceased. Apart from this, the actions of nephew of the deceased Wajid were so suspicious that daughter of the deceased was forced to call her uncle Muhammad Irfan (who was brother of the deceased) to take the injured to the hospital. If Wajid was not in league with other two robbers, then at least he should have shown some urgency in removing injured to hospital which was not done by him and even during process of committing alleged offences, his conduct was not free from being doubtful, as nothing has come in the evidence that he resisted and tried to save the deceased or at least raised cries like two females.

21. It was also argued that 161, Cr.P.C. statements of prosecution witnesses were delayed; however, in presence of such strong ocular testimony corroborated by other pieces of evidence, as stated above, this irregularity also cannot be made basis for setting aside the conviction and sentence of the appellant.

22. Although learned counsel argued that entire evidence of prosecution case is full of contradictions and discrepancies; however, he was not able to pinpoint any material contradiction or discrepancy in case of the prosecution. On the contrary, as stated above, the evidence of two eye-witnesses seems to be confidence inspiring and consistent with each other and has not been shaken by the learned counsel for the appellants despite lengthy cross-examination. Thus, the case of prosecution is fully proved by the eye-witnesses and is amply supported by medical evidence as well as circumstantial evidence. So far as minor contradictions are concerned, it may be observed that now it is well settled that minor contradictions in the evidence of the prosecution witnesses cannot be made basis for acquittal of the accused if otherwise on material aspects the witnesses have corroborated each other. In fact, with the passage of time such minor contradictions usually take place, thus same are ignorable. In this connection reference could be made to a decision delivered by Honourable Supreme Court in the case reported as Muhammad Ilyas v. The State (2011 SCMR 460) wherein it was held as under: "We are conscious of the fact that there are certain contradictions but in our view the same being minor in nature can be ignored safely. The learned Advocate Supreme Court on behalf of the appellants has stressed that these contradictions in oblivion of the fact that merely on the basis of contradictions, statement of a prosecution witness cannot be discarded if corroborated by other incriminating material."

23. There is plethora of case-law on this point; however, for sake of brevity, same are not being quoted here.

24. As stated above, the appellants did not examine themselves on oath. However, their statements under section 342, Cr.P.C. were recorded which are available at pages 315 onwards in the paper book. When appellant Zaffar Baig was confronted with the allegation that he and co-accused committed robbery in the house of the complainant and during such robbery they committed murder of the husband of the complainant, namely, Muhammad Rehan, the appellant stated that it is totally false and further stated that Abbas is his cousin and during the time when the incident in question took place, the area was under the control of Mutahida and the appellant and his cousin disallowed them i.e. members of MQM to sit in their Mohalla (area) which annoyed them and they falsely implicated the appellants in this case. This plea taken by the appellant for his false implication in instant case is so flimsy that no prudent person will take it. Apart from above, it is also noteworthy that appellants Zafar and Abbas have not stated that the complainant was an office bearer in MQM, therefore, she followed the command of the high ups and falsely implicated the appellants in this case. Then a very important and relevant question comes up to the mind. Why she would falsely implicate maternal nephew of the deceased in the murder of her husband. Appellant Zafar has stated in his 342, Cr.P.C. statement that he and his cousin, appellant Abbas did not allow MQM members to sit in their area which annoyed the MQM. A perusal of the impugned judgment shows that the appellants were paupers and were unable to engage a counsel to defend themselves. In this view of the matter it seems very strange that they are claiming to be taking on the might of the MQM in their heyday. I am not impressed by such plea taken by the appellants.

25. Even otherwise mere verbal assertion made by an accused in his statement under section 342, Cr.P.C., without proving same either by examining himself on oath as provided under Section 340(2), Cr.P.C. or producing any witness in support of his defence plea, cannot be accepted. In this connection reference may be made to the case of Anwar Shamim v. State reported in 2010 SCMR 1791, wherein Honourable Supreme Court held that it is the duty and obligation of accused to prove the plea taken by him in his defence in terms of Article 21 of Qanun-e-Shahadat, 1984. Similar observation was made by Honourable Lahore High Court in the case of Zeeshan alias Manna v. State reported in 2019 YLR 59 Lahore wherein it was held that accused took specific plea in his defence that deceased was murdered by unknown dacoits during the wardat of dacoity in the darkness of night but said plea taken by the accused was not proved by him during the trial and that accused was bound to prove the said plea taken by him in defence.

26. This is a case .of murder in broad day light and apparently there is no enmity between the complainant and the appellants. On the contrary, appellant Muhammad Wahid is nephew of the deceased husband of the complainant and, therefore, is also related to the complainant. The fact that Muhammad Rehan died unnatural death has not been denied by the appellants. Why the complainant would choose to falsely involve the appellants by substituting them for the real murderer(s) has not been explained.

27. A perusal of the impugned Judgment shows that the prosecution has established the charges against the accused beyond any shadow of doubt by the eye-witnesses complainant and her daughter Hira Kiran and the evidence of the eye-witnesses is fully supported by the circumstantial evidence as well as medical evidence adduced by the MLO. The evidence of the prosecution witnesses is trustworthy and confidence inspiring being natural, independent and free from all doubts and find corroboration through the medical evidence and recoveries of the robbed articles made from the possession of accused on their pointation, so also recovery of a single empty from the place of wardat which connect the accused with the alleged offences. Therefore, I find that the impugned judgment does not suffer from any infirmity or illegality calling for interference by this Court.

28. For the foregoing reasons, I find no merit in this appeal and, accordingly same is hereby dismissed. Consequently, the conviction and sentence(s) awarded to the appellants through impugned judgment are hereby maintained. JK/M-212/Sindh Appeal dismissed.