2007 P Cr (PLP)

NADEEM AZHAR SIDDIQI, J.

The appellant has challenged his conviction and sentence recorded by Additional Sessions Judge (Hudood) Sukkur in Sessions Case No.115 of 1987 arising out of Crime No.149 of 1986 of Police Station "A": Section Sukkur under sections 302, 307, 381, 454, P.P.C. and 13-D, Pakistan Arms Ordinance. The appellant was convicted and sentenced to death fox the murder of Talib Hussain, Abdul Rahman and Khalid Hussain. The appellant was "also convicted and sentenced to undergo R.I. for 7 years for attempt to murder of complainant Hadi Bux and also to pay fine of Rs.25,000 and in case of default to further undergo S.I. for one year more. The allegation in the F.I.R. are that on 29-10-1986 appellant returned by Sukkur Express and reached at the Bungalow of Khan Munawar Khan where complainant Hadi Bux, Abdul Rehman, Dhani Bux, Raja Muhammad Younis and one Khadim Hussain who is nephew of complainant were present and in the meantime one Muhammad Younis Khan Pathan contractor of sui gas arrived. Some differences arose between Talib Hussain and Raja Muhammad Younis and they grappled each other and they were separated. The appellant became annoyed and replied to Talib Hussain that he insulted him. The appellant went inside room of the bungalow which was locked and was in use of Khalid Khan son of Munawar Khan. Appellant started causing kicks to the door which was opened and the appellant entered into the room, took out licensed kalashnikov of Khalid Khan, came out and fired burst upon Talib Hussain who fell down and started running to escape whereupon the complainant, Abdul Rehman and Khadim Hussain encircled appellant and whereupon appellant started firing causing injuries to the complainant on his left arm and Abdul Rehman and Khadim Hussain sustained injuries and became unconscious. After usual investigation challan was submitted and the charge was framed against the appellant who pleaded not guilty and claimed to-be tried. In order to prove the case the prosecution examined Muhammad Younis, Rabdino Tapedar, Allah Bux, Hadi Bux (complainant) Noor Muhammad, Inspector Abdul Razak, Dr. Hafiz Sabir Ali who conducted the post-mortem of Abdul Rehman, D.S.P. Shoukat Ali, Dr. Abdul Khalique who produced the post-mortem of Talib Hussain conducted by Dr. Altaf Hussain Qazi and Dr. Abdul Hameed who has conducted the post-mortem of deceased Khadim Hussain. The appellant was examined under section 342, Cr.P.C. and declined to give any evidence. The evidence available in the present case consists of ocular evidence, recoveries of empties, medical evidence, identification test and confession of appellant. The complainant Hadi Bux P.W.4 in his deposition has fully implicated the appellant by deposing that the appellant fired burst of K.K. at deceased Talib Hussain which hit him who fell down on the ground. He further deposed that appellant also fired upon him which hit him on his left arm. Khadim Hussain and Abdul Rehman were also hit by the burst of kalashnikov and fell down on the ground. Accused ran away towards northern side along with kalashnikov. The witness was cross-examined but was not shaken during cross-examination. The witness appears to be credible as nothing adverse was brought on record to discredit his evidence. The witness has no motive to give false evidence against the appellant Muhammad Younis, P.W.1, has fully supported the evidence of the P.W.4 Hadi Bux. His evidence also appears to be reliable as the same was not shaken during cross-examination and nothing was brought on record to the effect that witness deposed falsely due to some ulterior motives or mala fide intention. Since the facts deposed by the above two witnesses were not challenged during cross-examination the same shall be presumed to be correct and the conviction can be based upon the evidence of witnesses as the same was proved to be reliable and inspiring confidence. The above evidence finds support from the recovery of four empties of kalashnikov and from the medical evidence. According to post-mortem report of Abdul Rehman got four fire-arm injuries and injury No.2 was sufficient to cause death. According to post-mortem report of Talib Hussain he got 10 fire-arm injuries out of which 5 were of wounds of entrance and 5 were of wounds of exit and injuries Nos.3 and 7 were sufficient to cause death. According to post-mortem report of deceased Khadim Hussain he got two fire-arm injuries and out of which 1 was of entrance and 1 was of exit wounds and was sufficient to cause death. The medical evidence fully supported the case of the prosecution. The circumstantial evidence like recoveries of empties, dead bodies are also supporting the case of prosecution. The complainant Hadi Bux P.W.4, Dhani Bux and Muhammad Younis have also identified the appellant in the identification test conducted by the Mukhtiarkar and F.C.M. Sukkur. P.W.4 states that appellant is same accused who called himself Raja Muhammad Younis. The prosecution has examined Allah Bux Mashir of identification parade who had produced the Mashirnama of identification of appellant. The confessional statement of the appellant was recorded on 14-12-1986 by the Mukhtiarkar and F.C.M. Sukkur. To prove the confessional statement the prosecution examined P.W.10 Waheed Ahmed who was posted with Mr. Arbab Ali Deenari Mukhtiarkar who died. The witness produced the confessional statement of appellant and has confirmed that the same was written in the handwriting of the Mukhtiarkar. However, the confessional statement of the appellant cannot be relied for the purpose of conviction as the same was retracted by the appellant and further while recording the statement of the appellant under section 342, Cr.P.C. the same was not put up before him, therefore, the same cannot be used against the accused/ appellant. We have carefully gone through the entire evidence with the assistance of the learned counsel for the appellant and found that appellant had motive for committing the crime which was mentioned in the F.I.R. and was established beyond doubt. F.I.R. was promptly lodged and contained necessary details. Injured eye-witness who has no enmity with the appellant was examined and his evidence was found reliable and inspired confidence. Medical evidence has no conflict with ocular circumstances. In view of above the prosecution has proved the case beyond any doubt. The above appeal was dismissed and confirmation case was allowed on 10-8-2006 by a short order and the above are the reasons of the same. H.B.T./M-168/K Appeal dismissed.