1. SYED ZAWWAR HUSSAIN JAFFRI, J.---This appeal is directed against the judgment dated 30th November, 1995 passed by learned Vth Additional Sessions Judge, Larkana whereby the appellant Wali Muhammad was found guilty of murder of deceased Ghulam Fareed and convicted him under section 302, P.P.C. and sentenced him to suffer death penalty, to be hanged by neck till he is dead. The accused Sono and Gaji were acquitted under section 265-(H), Cr.P.C. from the charge and their bail bonds furnished by them were discharged. Whereas the case of absconding accused Ghulam Rasool was kept on dormant file till his arrest. The above-named appellant has filed this appeal through Superintendent, Central Prison, Sukkur with a prayer that the impugned judgment may be set aside as he was involved in this case on the basis of previous enmity.
2. The brief facts as gleaned in the F.I.R. are that on 27-1-1992 at 1651 hours complainant Din Muhammad Bhutto lodged his F.I.R. with B-Section Police Station, Larkana stating therein that he had a son named Ghulam Fareed, who was employed as peon in Ushar and Zakar Office, Larkana and he used to reside with him in the same house. It is further stated that on 12-1-1992 his nephew Ali Hassan had received injuries at the hands of Wall Muhammad and others and he was witness against them in that case. Accused Wall Muhammad and others had threatened him that he was witness against them, therefore, they will see him. He further stated that he used to accompany his son Ghulam Fareed to his office and from his office to his house. On that day he had gone to the office of his son and they were returning both to their house on the way they met P.Ws. Rustam Ali Bhutto resident of Hyderi Muhalla, Larkana and Sikandar Ali Bhutto resident of Hussaini Muhalla, Larkana, they were also accompanying them. At about 15-50 hours when they reached near the Pilot School they saw that accused namely Wali Muhammad, Ghulam Rasool Sono Bhutto resident of Naudero and Gaji Bhutto resident of Kubro, Taluka Ratodero were standing on the road. Accused Wali Muhammad had a country-made pistol, Ghulam Rasool armed with revolver at that time.
3. Accused Wali Muhammad challenged them that today they will not spare them, saying this accused Wali Muhammad fired from his pistol at Ghulam Fared, which hit him on left side of his chest and accused Ghulam Rasool also fired from his revolver, which hit him on his back. The complainant raised cries and being helpless did not, go near the accused persons. The accused persons then ran towards northern side along with their weapons. Ghulam Fareed had received injuries on his chest and on his backside and he was found dead on the spot. Complainant then leaving the P.Ws. on the dead body went to Police Station B-Section, Larkana and lodged his F.I.R.
4. After usual investigation, the accused persons were sent up before the Court having jurisdiction and thereafter this case was sent up in the Court of Sessions where this case was transferred to the learned Vth Additional Session Judge, Larkana.
5. As per charge-sheet accused Ghulam Rasool was shown as absconding accused. The trial Court issued process for his arrest, but it was returned unserved and on the basis of endorsement it was stated that the accused has absconded away to some unknown place due to enmity. The trial Court recorded the statement of A.S.-I Ghulam Murtaza and issued proclamation order under sections 87 and 88, Cr.P.C. The trial Court framed the charge against the present accused and they pleaded not guilty and claimed their trial.
6. In the trial Court, the prosecution examined Medical Officer Dr. Akhtar Ali of C.M.C.H., Larkana as Exh.8, he produced post-mortem report as Exh.8-A, complainant Din Muhammad was examined as Exh.10, he produced F.I.R. as Exh.10-A, P.W. Rustam Ali was examined as Exh.11, Mashir Illahi Bux was examined as Exh.13, he produced Mashimama of place of Wardat as Exh.13-A, Mashirnama of arrest of accused Sono as Exh.13-B, Mashir All Hassan was examined as Exh.14, he produced inquest report as Exh.14-A, and Mashimama of arrest of accused Gaji as Exh.14-B, Tapedar Lal Muhammad was examined as Exh.15, he produced site plan as Exh.15-A, I.O. SIP Muhammad Nawaz was examined as Exh.16, he produced attested copy of Mashirnama of arrest of present appellant/accused Wali Muhammad as Exh.16-A. The prosecutor closed his side vide statement as Exh.16.
7. The trial Court also examined the appellant under section 342, Cr.P.C. statement as Exh.17, he produced copy of judgment in Sessions Case No,32 of 1962 of Sessions Court, Nawabshah as Exh.17-A, Sono as Exh.18 and Gaji as Exh.19. During the course of trial, the accused persons denied the allegations against them and stated that case against them was false and it was instituted due to previous enmity. The appellant Wall Muhammad further stated that complainant, P.Ws. Ali Hassan, Illahi Bux and Shall Muhammad were involved in murder case of his brother Sultan. He has further stated that on 18-9-1961 one Shaboo was murdered at Nawabshah and in that. murder case Din Muhammad complainant along with Khuda Bux were challaned and tried by the Additional Sessions Judge, Nawabshah and were acquitted, therefore, Yar Muhammad in order to take revenge has murdered Fareed in this case. During the trial, the accused/appellant did not examine any D.Ws. nor examined himself on Oath. The trial Court after hearing the learned counsel for the appellant Wali Muhammad and the Prosecutor, record conviction and was found guilty of accused Wali Muhammad under section 302, P.P.C. and sentenced him to suffer death penalty and he shall be hanged by neck till he is dead subject to confirmation. As per judgment reference was made to this Court for confirmation or otherwise. The jail appeal as well as Confirmation Case No,7 of 1995 is being decided together.
8. It is contended by the learned counsel for the appellant that complainant Din Muhammad has fabricated false story of this case due to connivance of previous enmity and other P.Ws. namely Rustam Ali and Sikandar Ali are related with the complainant and their evidence is based on enmity. It is further urged that the presence of P.Ws. Rustam Ali and Sikandar Ali at the spot is doubtful. It is further urged by the learned counsel for the appellant that there is conflict between Mashirnama and the eye-account given by the eye-witnesses. It is further urged that as per post- mortem the dead boy was brought by PC Allah Warayo and it was identified by Din Muhammad and Rustam Ali being the father and the uncle of the deceased' and the post-mortem was started at 5-00 p.m. and finished at 6-30 p.m. on 27-1-1992 whereas in the F.I.R. the time of incident is disclosed at 3-50 p.m. at VIP Road in front of Pilot School, Larkana whereas the dead body was dispatched and it was brought at 3-50 p.m. and it is impossible that the time of commission at 3- 5p whereas the dead body was brought at hospital at 3-50 p.m. It is further argued by the learned counsel for the appellant that P.W. Illahi Bux was declared hostile and Sultan brother of accused Wali Muhammad was murdered about. 3/4 years of the occurrence and P.W. Ali Hassan was witness and recovery of weapon was recovered from the appellant. In support of his arguments, learned counsel has relied upon the following case-laws:---
(1) Bati Khan v. Gulzar (1988 SCM R 279)
(2) Anil Phukan v. State of Assam (1993 SCM R 2236)
(3) Shahnaz Kausar v. S.H.O. (NLR 1998 Cr.LJ 228)
(4) Shah Muhammad v. State (2000 PCr.LJ 390)
9. 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 SCM R 1823).
10. 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.1.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 toe 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 All 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).
11. 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 arid 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.
12. 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.
13. 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.
14. 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 A 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 hereinbelow:-- "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.
15. 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."
16. 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.
17. 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 Court 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.
18. 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.
19. 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.
20. 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-arm 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.
21. 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.
22. 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.
23. 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.
24. 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.
25. 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 die learned trial Court was confirmed and these are the detailed reasons for the same.