2003 PLP 1201 (YLR)

(1) Bati Khan v. Gulzar (1988 SCMR 279). (2) Anil Phukan v. State of Assam (1993 SCMR 2236). (3) Shahnaz Kausar v. S.H.O. (NLR 1998 Cr.LJ 228). (4) Shah Muhammad v. State (2000 PCr.LJ 390). Conversely Mr. Safdar Ali Bhutto, learned counsel for the complainant has supported the conviction judgment and submits, that the evidence brought by the prosecution on record was found trustworthy and there is no contradiction in the evidence of prosecution witnesses. The incident was committed in broad daylight and the motive is admitted in the F.I.R. Learned counsel for the complainant has relied upon the case of Sardar Khan v. State (1998 SCMR 1823). Mr. Ghulam Sarwar Korai, learned counsel appearing on behalf of Additional Advocate‑General has supported the case of prosecution and submitted that the deceased Ghulam Fareed died by receiving fire‑arm injuries at the hands of present appellant as well as the co‑accused Ghulam Rasool, who was shown as absconding accused in the challan and his case was kept on dormant file. It is further submitted by the State Counsel that the appellant and co‑accused Ghulam Rasool on the day of incident in front of Pilot School Beat No. 1, Larkana in furtherance of common intention committed the murder of deceased by causing fire‑arm injuries and there is direct eye‑account of complainant and witnesses Rustam Ali and Sikandar Ali and their, evidence is supported by the medical evidence, as the medical officer deposed that the deceased Ghulam Fareed died due to haemorrhage shock caused by discharge from fire‑arm. It is further urged by the learned State Counsel that evidence of Mashir Illahi Bux who is Mashir of place of Wardat and Ali Hassan who is Mashir of arrest of accused Sono and Wali Muhammad have supported the prosecution case. It is further urged by the State Counsel that F.I.R. was lodged promptly within 20 minutes time of incident, therefore, there is no possibility to involve the accused on false pretext. The other accused Sono and Gaji were present on the place of Wardat and it was not alleged by the complainant that they were armed with any kind of weapon and done any action in furtherance of common intention of crime and the said accused were acquitted under section 265‑(H), Cr.P.C. It is further pointed out by the learned State Counsel that the evidence of P.Ws. Rustam Ali and Sikandar Ali is based as natural witnesses as they were going near Pilot School and they witnessed the incident as stated by the complainant. According to the prosecution case, there is ocular evidence supported by three witnesses and there is also corroboration of medical evidence. As per prosecution version, the medical officer found the following external injuries:‑‑ (1) Lacerated punctured wounds 9 in numbers each 1 c.m. in diameter scattered at left clavicle above and below the whole area measures 7 c.m. in diameter (wound of entry). (2) Lacerated punctured wound 1 c.m. x 1 c.m. at left scapular ample (wound of exit) injury No. 1. (3) Lacerated punctured wound 1 c.m. in diameter at left renal angle (wound of entry). (4) Lacerated punctured wound 1‑1/2 c.m. in diameter at left hypochondriac region (wound of exit of injury No.3). According to post‑mortem, there are two injuries wound of entry and wound of exit. As per F.I.R. it is stated that appellant Wali Muhammad fired at deceased Ghulam Fareed, which hit him on his chest whereas the other fire was made by absconding accused Ghulam Rasool from his revolver on the back of deceased and according to the medical certificate there is entry and exit wounds at left clavicle above and scapular ample and there is punctured wound on left renal angle and exit wound at left hypochondriac region. The ocular version is supported by the medical evidence. It is important to reiterate known principle of reappraisal of evidence in criminal cases namely that if a witness is trustworthy and reliable then conviction can safely be based on such evidence. In this case the evidence so brought by the prosecution is reliable evidence and the device of shifting the grain from chaff has come out through independent corroboration and, therefore, the trial Court on such reliable evidence and on material particulars awarded conviction to the appellant. The medical officer during the trial has stated that the post‑mortem of the deceased was started at 5‑00 p.m. and it was finished at 6‑30 p.m. on the same day. The dead body was identified by Din Muhammad father of deceased and Rustam Ali uncle of the deceased. The presence of Rustam Ali at the spot as well as in the hospital, it has been proved that he was available on that day at both places, therefore, there remains no doubt that he was not available at the time of commission of offence. The learned counsel for the appellant while cross‑examining the medical officer, it was suggested that injury sustained by the deceased was caused could be result of revolver shot or a pistol shot. The time of the commission of offence and arrival of the dead body was not disputed by the learned counsel in his cross‑examination. The presence of complainant Din Muhammad and P.Ws. Rustam Ali and Sikandar Ali at the scene of occurrence can also be considered through the site plan, which was prepared by the tapedar to inspect the place of Wardat. We are conscious of the fact that as far as site plan is concerned it has no evidentiary value but its importance can also not be denied to determine the location of the incident as well as the position of the witnesses particularly in this matter where presence or otherwise of the witnesses has been challenged. The operative part as held in the report judgment 1998 SCMR 1813 is reproduced herein below:‑‑ "The site plans are, however, prepared only to explain or to appreciate the evidence on record in the case. Site plan by itself is not a substantive piece of evidence so that it could contradict the ocular account in the case (see Taj Muhammad v. Muhammad Yusuf, PLD 1976 SC 234 and Mst. Shamim Akhtar v. Faiz Akhtar PLD 1992 SC

211. We are, therefore, of the view that omission to mention in the site plan, Exh.P.A., the names of all the accused, could not take away the probative force of the ocular testimony in the case." The learned counsel for the appellant has not pin‑pointed any discrepancy in the statements of complainant Din Muhammad and P.Ws. Rustam Ali and Sikandar Ali as well as in the evidence of Mashirs Illahi Bux and Ali Hassan. The evidence of independent witnesses can be adjudged if the witnesses are truthful or otherwise of his evidence on merits to ascertain whether evidence furnished by them have any independent value. The evidence of witnesses brought by the prosecution has been examined minutely so far it leads us to draw an inference that evidence furnished by them does not suffer from inherent improbabilities, improvements and contradictions, but the trial Court as well as this Curt examined the ocular evidence as well as the other evidence brought by the prosecution and we are of the view that the trial Court has rightly relied upon the ocular testimony. Learned State Counsel while arguing this matter has remarked that the incident has taken place on a busy road of a Larkana town and incident has taken place in broad daylight and F.I.R. was lodged promptly within 20 minutes and evidence of complainant and eye‑witnesses .is supported by the ‑ medical evidence. According to the evidence, prosecution has proved its case against the appellant as well as absconding accused Ghulam Rasool that in furtherance of common intention did commit the murder of deceased Ghulam Fareed. The specific part of firing is attributed which was proved during the trial by the independent witnesses and no consultation or deliberation had taken place to involve the appellant at the behest of the complainant or set up witnesses have been arranged by the complainant. From the statements of P. Ws. Rustam Ali and Sikandar Ali it cannot be presumed that they are chance witnesses, but on the contrary their presence in the F.I.R., Mashimama of Wardat and while acting as Mashir of identification of deceased at hospital is proved. The prosecution witnesses during the cross‑examination that no reasonable evidence brought on record to show that the appellant and the absconding accused have been involved falsely in this case. The act of each accused has been mentioned in the F.I.R., 161, Cr.P.C. statements and statements during the trial proceedings it is proved that appellant Wali Muhammad and absconding accused Ghulam Rasool participated with the commission of offence and fired at the deceased and consequently after receipt of injuries the deceased was found dead at the spot. From the place of Wardat three empties were recovered which corroborate the eye account as well as medical evidence as there is entry and exit wounds on the body of the deceased, therefore, medical evidence has furnished corroboration and the ocular testimony and the prosecution has succeeded in establishing its case on the basis of direct ocular evidence. The mere suggestion of the learned counsel that the appellant has been involved falsely on the basis of previous enmity is no ground to discard the prosecution case on the contrary as per motive according to the prosecution case as disclosed in the F.I.R. the complainant was witness against the appellant and others as they caused injuries to his brother and the accused party extended threats to the complainant and complainant used to accompany with his son to drop in his office and pick him on regularly, but on the fateful day when the complainant and the deceased were going to house where at about 15‑50 hours on VIP Road when they reached opposite to Pilot School they saw appellant Wali Muhammad, Ghulam Rasool Sono and Gaji. Out of them Wali Muhammad was armed with country‑made pistol, Ghulam Rasool was armed with revolver and Wali Muhammad fired at Ghulam Fareed, which hit him on left side of his chest, who fell down and Ghulam Rasool also fired which hit him on his back side. It is equally important to note that complainant Din Muhammad and P.Ws. Rustam Ali and Sikandar Ali in their depositions had ascribed the role to the appellant for causing, fire‑aim injuries along with co‑accused Ghulam Rasool. At the time of incident it is specifically stated that appellant Wali Muhammad having pistol in his hand while Ghulam Rasool was armed with revolver and caused injuries in the broad daylight in presence of eye‑witnesses and busy road in front of Pilot School, Larkana. The place of incident is thickly populated and the appellants were seen while committing the offence by the independent witnesses by attributing the specific part and they threatened the complainant party not to come near them and complainant party being helpless and could not rescue the life of deceased. It is also to be noted that the prosecution has absolutely established the presence of complainant and eye‑witnesses at the place of incident and the Mashirnama of Wardat, arrest, recovery of clothes, recovery of blood at the Wardat and empties from the place of Wardat and there are no material discrepancies in the evidence brought by the prosecution nor any material contradictions have been pin‑pointed by the learned counsel for the appellant. It is also a known principle of criminal administration of justice that if the ocular testimony did not suffer from material discrepancies then the evidence may be C presumed to be trustworthy. The medical evidence is corroborated with the ocular evidence. We have examined the evidence and come to the same conclusion, as the learned trial Court has believed the evidence of eye‑witnesses and there are no contradictions and discrepancies to disbelieve them without any material. The evidence is reliable, trustworthy and linking the accused with the commission of offence. A plain reading of their evidence suggests to hold that the witnesses allegedly saw the accused persons at the time of commission of offence and after 20 minutes of the incident the F.I.R. was lodged, therefore, 'there remains no possibility to involve them falsely in this case. The standards of the statements of prosecution witnesses one can conveniently connect that the depositions of the witnesses on its face appears to be reliable. It is well and golden rule that the prosecution primarily is bound to establish the guilt against the accused without shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence enabling the Court to draw conclusion whether the prosecution has succeeded in establishing accusation against the accused or otherwise. In the instant case, we have scanned the prosecution evidence in depth and we are persuaded to hold that the prosecution' has proved its case and brought trustworthy evidence inspiring‑confidence against the appellant. Conversely the evidence so brought on the record proved by the prosecution did not suffer from material discrepancies, contradictions and omissions and the same was accepted by the trial Court and there is no other material before us to dislodge the same evidence. The case‑law cited by the learned counsel for the appellant is taken into consideration, but the same is based on different principle of law and facts. Therefore, in view of what has been discussed above, we dismiss this appeal and maintain the impugned judgment and also accept the reference made for confirmation of the death sentence by the trial Court dated 30‑11‑1995. This jail appeal was heard on 5‑4‑2002 and by our short order the conviction awarded to the appellant was maintained and the reference made by the learned trial Court 'was accepted and death sentence awarded by the learned trial Court was confirmed and these are the detailed reasons for the same. N.H.Q./W‑32/K Appeal dismissed.