ALI WADHAYO SHAR Versus State
ZULFIQAR ALI SANGI, J.--- Through this appeal, appellant Ali Wadhayo Shar, has challenged the Judgment dated 09.03.2020, passed by learned 1st Additional Sessions Judge/ MCTC, Naushahro Feroze, in Sessions Case No.440/2015 re: "The State v. Ali Wadhayo", arising out of Crime No.213/2013, registered at Police Station Halani, under sections 302, 324, 337-H(ii), 148, 149, P.P.C., whereby the appellant was convicted for the offence under sections 302, 324, 148, 149, P.P.C. and sentenced for offence under section 302(b) read with section 149, P.P.C. to suffer R.I. for life as Tazir and to pay Rs.200,000/- (two lacy) as compensation under section 544-A, Cr.P.C. to the legal heirs of deceased with fine of Rs.50,000/-, in case of default in payment of fine, he shall undergo SI for six months more; for offence under section 324 read with section 149, P.P.C. to suffer five years RI and to pay fine of Rs.20,000/-, in case of default in payment of fine, he shall undergo SI for three months more; for offence under section 148, P.P.C. to suffer two years RI and to pay fine of Rs.10,000/-, in case of default in payment of fine he shall undergo SI for two months more.
2. Briefly facts of the prosecution case as gathered from the FIR lodged by complainant Ghazi Khan son of Darya Khan Shar on 11.12.2013 @ 1815 hours at Police Station Halani are that some time ago, accused Ali Wadhayo Shar and others had committed murder of his son Jiand and such FIR bearing Crime No.187/2013 under section 302, P.P.C. was registered against them at Police Station Halani to which accused Ali Wadhayo Shar and others being absconders were sending murderous threats to the complainant party to withdraw from said case/FIR, otherwise, their other family members will also be murdered. On 10.12.2013 complainant, his sons each Darya Khan, Nek Muhammad, deceased grandson Aamir Ali son of Darya Khan Shar aged about 04 years and other family members were available in the house, when at about 8.00 pm they heard some commotion from entrance of their house, as such on torch lights, they saw and identified accused each 1. Ali Wadhayo armed with gun,
2. Mushtaque alias Ghulam Mustafa,
3. Mukhtiar both armed with pistols all sons of Ali Gohar Shar,
4. Mithal son of Noor Khan,
5. Altaf son of Mithal both armed with guns by caste Shar resident of near village Dargah Hussain Khawajani, Taluka Sobho Dero,
6. Mangho son of Khan Muhammad Shar armed with gun resident of village Odhar Shar near Sui Gas, taluka Mirwah and 7. Khabbar son of Soomar Shar armed with repeater resident of Own Houses near Kotri Kabir, taluka Mehrabpur, they all challenged the complainant that since he did not withdraw from murder case, as such, they will not spare him and while saying so, started firing upon them with intention to commit their murder, in the meanwhile, accused Ali Wadhayo Shar from his gun made straight, fire upon complainant's son Darya Khan with intention to kill him who fell down on the ground and same fire hit to his son Aamir Ali on the head (Grand son of the complainant), as he was sitting on a cot, who after sustaining such firearm injury fell down on the cot, then all accused persons in order to create harassment made aerial firing. On cries of complainant party and hearing firearm reports, co-villagers came there running and on seeing them accused persons while making aerial firing went away. Complainant party went near injured Aamir Ali and found that he having sustained firearm injury on his head from which membrance had come out and died, while Darya Khan had also sustained firearm injury on little finger of his right hand from which blood was oozing, thereafter complainant leaving witnesses over dead body of the deceased went to PP Kotri Kabir to convey the incident wherefrom police came at the place of vardat and after completing legal formalities, shifted the dead body to RHC Halani and after postmortem it was handed over to complainant party which they brought to their village, then after becom-ing free from funeral ceremony, comp-lainant appeared at PS and lodged FIR.
3. After usual investigation, SHO concerned submitted report under section 173, Cr.P.C. / challan against accused 1. Ali Wadhayo,
2. Mushtaque alias Ghulam Mustafa,
3. Mukhtiar,
4. Mithal and 5. Altaf showing them as absconders, while releasing co-accused Mangho and Khabar under section 169, Cr.P.C. before learned Civil Judge and Judicial Magistrate-1, Kandiaro who after completing legal formalities, sent-up the case to learned Sessions Judge, Naushahro Feroze where from it was assigned to learned Additional Sessions Judge, Kandiaro by way of transfer for disposal according to law. Subsequently accused Ali Wadhayo and Altaf were arrested and sent up through supplementary reports/challan, as such necessary documents were supplied to them vide receipt at Exh.01, thereafter case was transferred to 1st Additional Sessions Judge/ MCTC Naushahro Feroze for disposal according to law. A formal charge was framed against accused Ali Wadhayo and Altaf on 03.12.2015 to which they pleaded not guilty and claimed to be tried.
4. To substantiate the charge, prosecution examined following witnesses:--
Medical Officer Dr. Muhammad Dawood, as PW-01, at Exh.06, he produced carbon copy of Police letter, medical certificate of injured Darya Khan, Lash Chakas Form and postmortem report of deceased Aamir Ali at Exh. 06/ A to D;
Tapedar Aijaz Ali Makhdoom, as PW-02 at Exh.07, he produced police letter and site sketch at Exhs.7/A and B;
PC Muhammad Budhal, the corps bearer, as PW-03 at Exh.08, he produced receipt of dead body of deceased at Exh. 8/A;
IO/SIP (now retired) Nazeer Ahmed Awan, as PW-04 at Exh. 09
5. During pendency of the case, accused Altaf son of Mithal Shah was acquitted under section 345(6), Cr.P.C. vide order dated 23.12.2019 on amount of compromise arrived between the parties.
Prosecution further examined following witnesses;
Complainant Ghazi Khan as PW-05 at Exh.14, he produced FIR at Exh.14/A;
Eye-witness/injured Darya Khan as PW-06 at Exh.15;
ASI Muhammad Chuttal as PW-07 at Exh. 18, he produced mashirnama of dead body of deceased, Danistnama, mashirnama of blood stained Quilt (Ralli), attested copy of roznamcha entry, mashirnama of last worn blood stained clothes of deceased, carbon cope of letter addressed to SDPO Mehrabpur for permission, mashirnama of inspection of injuries of injured Darya Khan, further statement of complainant under section 162, Cr.P.C., mashirnama of inspection of place of incident and Chemical Report at Exh.18/ A to J respectively;
Mashir Alam Khan as PW-08 at Exh.22, thereafter, learned DDPP for the State closed the prosecution side vide statement at Exh. 23.
7(sic). The statement of accused Ali Wadhayo Shar as contemplated under section 342, Cr.P.C. was recorded to which he not only denied the prosecution allegations but also pleaded false implication. Accused has stated that complainant and his brother Mukhtiar (co-accused) had purchased land from the people of Shah community in which they had shared Rs.3,00,000/-, the complainant party in order to usurp their share has lodged false FIR and implicated in this case. He has stated that deceased had died due to inadvertent fire of his father, thereafter, complainant due to dispute over land has falsely involved them in this case, and appellant neither examined himself on oath nor led evidence in support of his defence.
8. Learned counsel for the appellant has contended that the prosecution has failed to prove its case beyond reasonable doubt; that learned trial Court did not appreciate the important aspect regarding the major contradictions of the prosecution case; besides complainant has given contradictory statement with the statements of PWs; that Complainant in order to usurp land managed this false story as his brother/co-accused Ghulam Mustafa alias Mushtaque had paid Rs.300,000/- for purchasing the said land being co-sharer; that inspite of easy availability of independent persons at the place of incident not a single witness was associated as witness to corroborate the version of Complainant, therefore in presence of enmity between the parties, the testimony of complainant and PWs, is fatal to the prosecution case; that ocular version suffers from improvements and not in line with medical evidence; that complainant and PWs are relatives and interested, therefore their evidence cannot be believed; besides there are many lacunas and contradictions in the evidence of PWs; that the impugned Judgment is against the law, facts, principles of natural justice and equity; that learned trial court has erred in convicting the appellant by not taking into consideration the entire material and thus the impugned Judgment is liable to be set-aside. He finally prayed that by extending benefit of doubt, the appellant may be acquitted.
9. Learned DPG appearing for the state has supported the impugned judgment and further contended that the prosecution has proved its case against the appellant beyond any reasonable shadow of doubt by producing oral as well as documentary evidence; that the learned trial court has rightly convicted the appellant and he does not deserve any leniency; that there appears no illegality or irregularity in the impugned judgment which is well reasoned and does not require any interference of this court.
10. I have heard learned counsel for the parties and have gone through the material available on record with their able assistance.
11. The prosecution in order to prove the injury received by the injured and unnatural death of deceased examined Dr. Muhammad who deposed that on 10.12.2013 he was posted as Senior Medical Officer at RHC, Halani, where at about 9.00 pm, injured Darya Khan son of Ghazi Khan by caste Shar, aged about 25 years was produced before him by ASI of Police Station Halani for his examination, medical treatment and certificate. However, later on, he received such police letter No.1581, dated 10.12.2013, he examined the injured and found following injury on his person.
"A crushed type lacerated wound situated on little finger of right hand at its distal phalanx with whole tip of the finger along with some bony part and nail was missing at the injury site, slight blackening was present on margins of wound".
12. The doctor further deposed that injured/patient was kept under observation and on next day viz. 11.12.2013 he issued such medical certificate in respect of injured, declaring the above mentioned injury as Jurh Ghayr Jaifah Munaqillah. On the same date viz. 10.12.2013 he also received a dead body of deceased Aamir Ali son of Darya Khan by caste Shar, along with Lash Chakas Form, which was brought by PC Budhal Khan of PS Halani having endorsement of police letter No.1580, dated 10.12.2013 for its postmortem examination and report. The dead body of the deceased was identified by Ghazi Khan Shar, the grandfather and Darya Khan Shar, the father of the deceased. At about 10.15 pm he started the postmortem examination of dead body of deceased and finished the same at about 10.45 pm.
13. On external examination of dead body of deceased, he found it was a dead body of minor aged child of about four years age, wearing green colour shalwar and Qameez stained with blood, stout was not decomposed. Rigor mortis was not present. He also found following injuries on his person.
"A gutter shaped lacerated wound with slightly burnt inverted margins situated at the left eye measuring 05 cm x diameter with wound of exit on the upper margin of right occipital region of head and it was measuring 08 cm x 06 cm (margins everted. Interiorly structure of left eye was missing, orbital bone crushed in multiple pieces, brain matter damaged and visible at exit site and occipital bone fractured and some part was missing at exit site".
14. On the internal examination of the deceased, he found only above injury to the scalp and skull already described and all the internal organs including vertebrae were not opened. From the external as well as internal examination of the dead body of the deceased Aamir Ali son of Darya Khan Shar, he was of the opinion that death occurred due to injury to the vital organ i.e. brain mentioned injury (only one) and was sufficient enough to cause an instantaneous death. The injury was ante-mortem in nature and caused due to discharge from firearm. Thereafter he handed over the dead body of the deceased through same police official PC Budhal. During the cross-examination he stated that "The injury on the person of deceased Aamir Ali was one, which was through and through having its entrance and exit wounds with different measurements." He also stated during cross-examination that "After examination of injured Darya Khan at 9.00 pm, the dead body of deceased Aamir Ali was brought before him after one hour at about 10.00 pm. The dead body of the deceased Aamir Ali and last worn clothes of deceased were handed over to PC Budhal." Entire chief-examination and the cross-examination was carefully scanned no material contradiction has been seen in the evidence of doctor. From the evidence of doctor it is established that the injured Darya Khan received the injury from firearm weapon and the deceased died due to firearm injury and the same was unnatural death.
15. After the prosecution proved that the injured Darya Khan received firearm injury and the deceased Aamir Ali died due to firearm injury then the question before this court would be that who committed the said offence to which prosecution in order to prove its case examined complainant Ghazi Khan as PW-5 who deposed that the Deceased Aamir Ali, aged about four years, was his grandson. Prior to this incident, accused Ali Wadhayo and others had committed murder of his son Jiand and such case was pending before the court of law. Accused Ali Wadhayo and others used to extend murderous threats to withdraw from the said murder case. On 10.12.2013 he along with his son Darya Khan and other inmates of house were available in their house, it was about 8.00 pm night, all of sudden 7/8 persons forcibly entered into their house, out of whom, they identified each; 1. accused Ali Wadhayo armed with gun,
2. Mukhtiar armed with pistol,
3. Mushtaque armed with pistol,
4. Mithal armed with gun,
5. Altaf armed with gun and 2/3 persons were not identified by them. Accused Ali Wadhayo fired upon his son Darya Khan which hit him on the little finger of left hand and same fire also hit to his grandson Aamir Ali, who was sitting on the cot. Thereafter all accused persons by raising Hakkals went out of the house. He deposed that his grandson Aamir Ali died on the spot within their sight. Then he went to Police Post Kotri Kabir, where informed the incident to police. AS1 Muhammad Chuttal Khushik along with one PC Muhammad Budhal accompanied him and came at place of incident, where he inspected the place of incident and completed other formalities and then gave letter to PC Muhammad Budhal, who shifted the injured Darya Khan and dead body of the deceased Aamir Ali at RHC, Halani, where medical treatment was provided to injured Darya Khan and postmortem of dead body of deceased was conducted. After postmortem, the dead body of the deceased was handed over to him under receipt. Then they brought the dead body of the deceased at their village and observed funeral ceremony. After becoming free from funeral ceremony on 11.12.2013 he appeared at Police Station Halani, where lodged FIR of the incident, police inspected the place of incident on his pointation in presence of mashirs. This witness was cross-examined and during cross-examination negated the suggestions made on behalf of the appellant for false implication and nothing was brought on record by the defence which favours the appellant.
16. The prosecution also examined eye-witness of the incident who was also the injured namely Darya Khan as PW-6 who deposed that he was eye-witness as well as injured in this case. Complainant Ghazi Khan is his father. Deceased Aamir Ali, aged about four years, was his son. Prior to this incident, accused Ali Wadhayo and others had committed murder of his brother Jiand and such case was registered and pending before the court of law. Accused Ali Wadhayo and others used to extend murderous threats to them through cellphone to withdraw from the said murder case; otherwise, they will be murdered. On 10.12.2013 it was about 8.00 am night, he along with his father complainant Ghazi Khan, brothers Nek Muhammad and Muhammad Alam and other inmates of house were available in their house, after taking meals they were sitting on the cots, their cattle were also tied in the cattle-pen. They heard commotion, his father Ghazi Khan also woke up and flashed torch light towards outer gate of their house and they found 7 persons forcibly entered into their house, out of whom, they identified each; 1. accused Ali Wadhayo armed with gun,
2. Mukhtiar armed with pistol, 3.Ghulam Mustafa alias Mushtaque armed with pistol,
4. Altaf armed with gun,
5. Mithal armed with gun,
6. Mangho armed with gun,
7. Khabbar armed with repeater. Accused Ali Wadhayo asked his father Ghazi Khan that since he had not withdrawn from the murder case pending against him and today he will not spare them and will commit murder of their family members, while saying so, accused Ali Wadhayo directly fired upon him with intention to commit his murder, which hit him on the little finger of right hand and same fire also hit to his son Aamir Ali, who was sitting on the cot and sustained such firearm injury. Thereafter all accused persons by raising Hakkals went out of the house by making aerial firing. On their cries and firearm reports, neighbourers gathered there. Thereafter they found that his son Aamir Ali died on the spot within their sight. Thereafter his father Ghazi Khan while leaving them in the house, proceeded to Police Post Kotri Kabir, wherefrom he brought ASI Muhammad Chuttal Khushik along with PC Muhammad Budhal in a private car at place of incident, where he inspected the place of incident, his injuries were also inspected by him so also dead body of his deceased son Aamir Ali was also examined by him and he completed other formalities and then gave letter to his father Ghazi Khan, then they shifted dead body of deceased Aamir Ali at RHC, Halani. At the hospital medical treatment to injured was provided and postmortem of dead body of deceased Aamir Ali was conducted. After postmortem, at about 10.30 pm of night, the dead body of the deceased was handed over to them. Then they brought the dead body of the deceased at their village and observed funeral ceremony. On the next date viz. 11.12.2013 his father Ghazi Khan went at Police Station Halani where he reported incident to police. On next day viz. 12.12.2013 his statement under section 161, Cr.P.C. was recorded by ASI Muhammad Chuttal at Police Station. He was cross-examined and during the cross-examination he stated that "It is correct to suggest that accused Ali Wadhayo is my real maternal cousin (Masaat)." He further during cross-examination stated that "Accused made one fire at me, while 2 or 3 aerial fires were also made by them. No other house is situated in nearby to our houses. When accused made fire, I along with my deceased son, was sitting on the cot. towards northern side." This witness on suggestions made on behalf of the appellant stated that "It is correct to suggest that my deceased brother Jiand was married with the daughter of Ghulam Mustafa alias Mushtaque. It is correct to suggest that the marriage of Mst.Shazia was an exchange of our sister Mst. Rubeena. Self-added that accused Ali Wadhayo and others were not ready to have the marriage of Ghulam Mustafa alias Mushtaque with Mst. Rubeena and they were pressurizing my deceased brother Jiand to divorce his wife Mst. Shazia." From the perusal of evidence of this witness it is established that he has given full particulars of the incident and defence counsel failed to bring on record anything favourable to the appellant for giving benefit of any doubt.
17. Further to prove the case prosecution examined AS1 Muhammad Budhal who deposed that on 10.12.2013 at about 9.30 pm he as per directions of ASI Chuttal Khan took the dead body of deceased Aamir Ali son of Darya Khan by caste Shar in a private Datsun along with Ghazi Khan and his son and shifted to RHC, Halani under Lash Chakas. Form having endorsement of police letter for postmortem. At about 10.30 pm the dead body of the deceased was handed over to Medical Officer. After postmortem the dead body of the deceased was received by him from Hospital in between 12.30/1.00 am (night) which he handed over to complainant Ghazi Khan under receipt. On the same date, he also received last worn clothes of deceased from hospital which he handed over to ASI Muhammad Chuttal at PS at about 7.00 am. This witness was cross-examined but nothing favourable to appellant has come on record.
18. Whereas to prove the place where such incident took place the prosecution examined Tapedar of the beat as PW-2 who after visiting the place of vardat prepared the sketch and the same has been exhibited by him in the evidence. He was cross-examined but nothing favourable to appellant came on the record.
19. The prosecution also examined Nazeer Ahmed PW-4 who deposed that on 25.12.2013 he was posted as SIP/S.H.O. Police Station Halani. On the same date, ASI Muhammad Chuttal Khushik, after completing investigation in Crime No.213/2013, under sections 302, 324, P.P.C. of Police Station Halani handed over him case papers, which he forwarded for submitting challan before competent court of law. He was cross-examined but no contradiction or dent available in his evidence which may go in favour of the appellant.
20. The prosecution in support of the case also examined mashir namely Alam Khan who deposed that on 10.12.2013 ASI Muhammad Chuttal Khushik along with his subordinate staff came at the place of incident and inspected the same in his presence and co-mashir Nek Muhammad and prepared the mashirnama. ASI Muhammad Chuttal also prepared inquest report of deceased Aamir Ali in his presence and co-mashir Nek Muhammad. ASI Muhammad Chuttal also recovered blood stained Ralli in his presence and co-mashir Nek Muhammad under mashirnama. He further deposed that on 11.12.2013 PC Budhal Khushik produced last worn blood stained clothes of deceased before ASI Muhammad Chuttal in his presence and co-mashir Nek Muhammad which he recovered under mashirnama. On 12.12.2013 ASI Muhammad Chuttal Khushik inspected the place of incident in his presence and co-mashir Nek Muhammad and prepared the mashirnama. On the same date viz. 12.12.2013 ASI Muhammad Chuttal also inspected the injuries of injured Darya Khan and prepared such mashirnama in his presence and co-mashir Nek Muhammad. Mashir was cross-examined by the defence counsel but nothing favourable to appellant is found.
21. The prosecution examined Investigation Officer PW-7 ASI Muhammad Chuttal who deposed that on 10.12.2013 he was posted as ASI at PS Halani. On the same date, he was present at PS where one Ghazi Khan came and disclosed that accused Ali Wadhayo and others have committed murder of his grandson namely Aamir Ali, aged about four years. He kept such entry No.24 at 2100 hours, then he along with PC Budhal left police station in private vehicle and came at place of incident, where dead body of deceased boy Aamir Ali was lying on a cot, therefore, he prepared such mashirnama of dead body in presence of mashirs Nek Muhammad and Alam. He also prepared inquest report in presence of same mashirs. He prepared Lash Chakas Form of deceased in presence of same mashir and also recovered blood stained Ralli and prepared such mashirnama in presence of same mashirs. He deposed that the dead body of the deceased boy was handed over to PC Budhal, who along with complainant shifted the same to RHC, Halani and he returned back at PS vide entry No.25 at 2300 hours. On next day viz. 11.12.2013 at about 0700 hours, PC Budhal brought last worn blood stained clothes of deceased at PS, he kept such entry No.29, which he sealed and secured under mashirnama in presence of same mashirs. On 11.12.2013 complainant Ghazi Khan came at PS and disclosed the facts of cognizable offence which he incorporated into 154, Cr.P.C. book as per his verbatim and lodged such FIR as Crime No.213/2013, under sections 302, 324, 147, 148, 149, 337-H(ii), P.P.C. On 12.12.2013 he wrote a letter to DSP, Mehrabpur for permission to send blood stained clothes of deceased for Chemical Examination and on the same date viz, 12.12.2013 he also prepared mashirnama of injury of victim/injured Darya Khan in presence of same mashirs. On the same date viz. 12.12.2013 he also recorded further statement of complainant Ghazi Khan. On the same date viz. 12.12.2013 he also recorded statements of PWs under section 161, Cr.P.C. On the same date viz. 12.12.2013 at about 1400 hours, he inspected the place of incident in presence of same mashirs under mashirnama. During investigation, he received Chemical Examiner's Report No.2798/2013, dated 30.12.2013 and after completing investigation, he handed over case papers to SIP Nazir Ahmed Awan, the SHO Police Station Halani, who submitted the challan before the competent court of law. His cross-examination is carefully perused and nothing favourable to appellant is found.
22. The evidence produced by the prosecution was reassessed and on reassessment of the entire evidence including the medical evidence the important part of which discussed above and after hearing learned advocate for the appellant and the D.P.G., I find that the prosecution has proved its case against the appellant for the offences charged beyond shadow of reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence.
23. Contention of the counsel for the appellant that the FIR was registered on the next day and the said delay has not been explained by the prosecution has no force as thought the FIR of the present incident was registered on the next date but the incident was reported to police on the same day within shortest period of time and after the information NC was recorded by the police which too was exhibited in the evidence and it is also come in the evidence that police came at the place of vardat took the injured and deceased toward hospital which clearly indicates that the information to the police was furnished promptly. Postmortem of deceased was also conducted promptly. The complainant and the injured eye-witness gave full particulars of the incident and during cross-examination their evidence was not shattered. The Honourable Supreme Court in case of Farman Ali and another v. The State and another (2020 SCMR 597), has held as under:
4. We have heard the learned counsel for the petitioner Farman Ali in Criminal Petition No.29- P/ 2012, and also perused the whole record in Jail Petition No.76/ 2012, preferred by Amjad Ali co-convict of Farman Ali and observed that in this case the occurrence took place at about 5.15 p.m. The Police after coming to know about the occurrence arrived in the Emergency Department of the Hospital where Muhammad Askar Khan, Complainant/PW-1, reported the matter. The postmortem was conducted on the same day after about one hour of the occurrence. In the FIR, it is specifically mentioned that the petitioners Farman Ali and Amjad Ali along with Malik Alam (P.O.) fired at the deceased Muhammad Ajmal Khan. Due to their firing, the deceased received fire shots and succumbed to the injures. The names of the eye-witnesses have specifically been mentioned in the FIR. In this case, the matter was promptly reported to the police and the postmortem was also conducted, promptly, which exclude the possibility of consultation or deliberation on the part of the prosecution.
24. Contentions raised by the learned counsel for the appellant that the witnesses are relatives of deceased and are interested, therefore, their evidence cannot be relied upon has also no force as although the witnesses are relatives of the deceased but they specifically deposed against the appellant. During cross-examination it was also brought on record that the appellant is also near relative of the complainant party being real maternal cousin "MASAT". The presence of complainant and the eye-witness is also established as the witness Darya Khan also received firearm injury. There is no dent in the prosecution evidence which suggest that the appellant was falsely involved in the commission of offence. In the case of Nasir Iqbal alias Nasra and another v. The State (2016 SCMR 2152) Honourable Supreme Court has held as under:-
In the above circumstances, we found that the ocular evidence furnished by the eye-witnesses to be credit worthy and confidence inspiring and we have not been able to observe any defect or material lacunas in their evidence; their presence at the spot had been established beyond any shadow of doubt; both the eye-witnesses were of course closely related to the deceased but fact of the matter remains that their mere relationship would not render them to be interested or partisan witnesses when the same has been corroborated with the medical evidence as well as the recoveries of crime weapon and the motive has fully been proved as such in our view no interference is required in conviction of the appellants."
25. In the case of Abid Ali and 2 others v. The State (2011 SCMR 208), Hon'ble Supreme Court of Pakistan has held as under:--
21. To believe or disbelieve a witness all depends upon intrinsic value of the statement made by him. Even otherwise, there cannot be a universal principle that in every case interested witness shall be disbelieved or disinterested witness shall be believed. It all depends upon the rule of prudence and reasonableness to hold that a particular witness was present on the scene of crime and that he is making true statement. A person who is reported otherwise to be very honest, above board and very respectable in society if gives a statement which is illogical and unbelievable, no prudent man despite his nobility would accept such statement.
26. In the case of Lal Khan v. State (2006 SCMR 1846), Hon'hle Supreme Court has held as under:--
... The mere fact that a witness is closely related to the accused or deceased or he is not related to either party, is not a sole criteria to judge his independence or to accept or reject his testimony rather the true test is whether the evidence of a witness is probable and consistent with the circumstances of the case or not.
27. In the case of Zulfiqar Ahmed and another v. State (2011 SCMR 492) Hon'ble Supreme Court has held as under:-
...It is well settled by now that merely on the ground of inter se . relationship the statement of a witness cannot be brushed aside. The concept of 'interested witness' was discussed elaborately in case titled Iqbal alias Bala v. The State (1994 SCMR 1) and it was held that 'friendship or relationship with the deceased will not be sufficient to discredit a witness particularly when there is no motive to falsely involve the accused.
28. Another contention of learned counsel for the appellant that the crime weapon allegedly used by the appellant at the time of offence was not recovered from him, therefore, the appellant cannot be connected with the murder of deceased, has no force in view of that, all the prosecution witnesses supported the case of prosecution by deposing that the appellant directly fired from the gun which hit the injured Darya Khan and deceased Aamir Ali and their direct evidence is further corroborated by medical evidence as the doctor who examined the injured and the deceased had found firearm injuries on their person. It is settled by now that where charge was proved by other direct, natural and confidence inspiring evidence, then non-recovery of crime weapon was not fatal to prosecution case. Reliance is placed on the case of Sikander Teghani alias Muhammad Bux Teghani v. The State (2016 YLR 1098).
29. The contentions in respect of identification of the appellant being doubtful as according to him the incident took place at night time and there was no source of identification except torch light which too was not produced by the prosecution before the Investigation Officer or before the trial court has no force as though the incident took place at the night time but the appellant was close relative of the complainant party and they knew each other very well and it was suggested to the prosecution witnesses who admitted during cross-examination that the appellant was the maternal cousin (Masat) of the PWs. The witnesses gave each and every aspect of the incident, they being owners of the house where this incident took place were present at the time of incident and their presence also established from the fact that the father of the deceased had also received the injury from the hands of the appellant. It is unnatural that where the natural witnesses are blood-relations then normally the possibility of substitution becomes rare and it does not appear to be believable that all of them agreed in substitution of real culprits with innocents (appellant). In the case of Zahoor Ahmed v. The State (2007 SCMR 1519), Honourable Supreme Court of Pakistan has observed is under: -
6. ... The petitioner is a maternal-cousin of the deceased, so also the first cousin of the deceased through paternal line of relationship and thus, in the light of the entire evidence it has correctly been concluded by the learned High Court that the blood relation would not spare the real culprit and instead would involve an innocent person in the case. Further it has rightly been observed that it was not essential for the prosecution to produce each of the cited witnesses at the trial.
30. Learned counsel for the appellant pointed out some minor contradictions and discrepancies in the evidence which in my view are not sufficient to hold that the case of prosecution is doubtful. It is settled by now that, where in the evidence, prosecution established its case against the accused beyond a reasonable doubt then if there may some minor contradictions which always are available in each sand every case the same may be ignored, as has been held by Honourable Supreme Court in case of Zakir Khan v. The State 1995 SCMR 1793), relevant paragraph is reproduced as under:--
"13. The evidence recorded in the case further indicates that all the prosecution witnesses have fully supported each other on all material points. However, emphasis has been laid by Mr. Motiani upon the improve-ments which can be found by him in their respective statements made before the Court and some minor contradictions in their evidence were also pointed out. A contradiction, unlike an omission, is an inconsistency between the earlier version of a witness and his subsequent version before the Court. The rule is now well established that only material contradictions are to be taken into consideration by the Court while minor discrepancies found in the evidence of witnesses, which generally occur, are to be overlooked. There is also a tendency on the part of witnesses in this country to overstate a fact or to make improvements in their depositions before the Court. But a mere omission by witness to disclose a certain fact to the Investigating Officer would not render his testimony unreliable unless the improvement made by the witness while giving evidence before the Court has sufficient probative force to bring home the guilt to the accused."
31. Thus based on the discussion made hereinabove and on the reassessment of entire evidence produced by the prosecution, I am of the considered view that the prosecution has proved its case beyond a reasonable doubt against the appellant by producing reliable, trustworthy, and confidence-inspiring oral evidence as well as medical evidence, so also the documentary evidence in support of the same. I, therefore, uphold all the sentences, fines, and penalties for each offence in the judgment dated 09.03.2020, passed by learned 1st Additional Sessions Judge/MCTC, Naushahro Feroze, whilst dismissing the appeal of the appellant.
JK/A-44/Sindh Appeal dismissed.