1. ' NADEEM AZHAR SIDDIQI, J.--- The appellant has challenged his conviction and sentence recorded by the Additional Sessions Judge (Hudood) Sukkur. In Sessions Case No,5 of 1997 arising out of Crime No,146 of 1986 of Police Station Rohri, under sections 302, 353, P.P.C. And section 13-D of Pakistan Arms Ordinance, 1965. The appellant was convicted and sentenced to death for committing the murder of Traffic constable Mir Muhammad Junejo and he was also convicted and sentenced under section 353, P.P.C. To undergo R.I. For two years and pay fine of Rs,5,000 and in case of default to further undergo for two months more.
2. ' The allegation against the appellant in the F.I.R. Is that on 14-10-1986 the complainant was posted as guard of left Barrage Sukkur along with other police constables. On 19-10-1986 at 6.00 hours in the morning P.C. Muhammad Hussain started Guard duty and P.C. Mir Muhammad Junejo started his duty at Traffic point. The complainant stated that after taking bath when he returned. One Suzuki Pick-up bearing No,900-734 came from Sukkur side and was cautioned for stopping by traffic constable Mir Muhammad Junejo. On that driver drove Suzuki on footpath and P.0 Mir Muhammad went towards the said Suzuki on that one person who was armed with K.K. Sitting on the backside of the Suzuki whom the complainant identified to be the employee of Khan Munawar Khan. P.C. Muhammad Hassan of Guard duty was present there and they saw the abovenamed person and identified to be Raja Muhammad Youths, as police constable Mir Muhammad advanced towards the Suzuki Raja Muhammad Younis gave Hakals not to come near the Suzuki and did not stop the Suzuki as he had murdered two persons in the bungalow of Khan Munawar Khan and by saying such words accused fired with K.K. Upon the traffic constable Mir Muhammad Junejo that fire hit him and he fell down. Suzuki was driven away towards Rohri. The time was given as 9.00 hours P.C. Mir Muhammad Junejo had got fire-arm injuries on his chest from left side and blood was oozing and was dead.
3. ' After usual investigation challan was submitted and the charge was framed against the appellant on 5-10-1987 who pleaded not guilty and claimed to be tried.
4. ' In order to prove the case prosecution examined complainant Muhammad Nawaz as P.W.1 who produced the copy of the F.I.R. Ghulam Abbas as P.W.2 driver of the Suzuki pickup. P.C. Khan Muhammad as P.W.3. Muhammad Hassan as P.W.4 was eye-witness. Habibullah P.W.5 who was Assistant Commissioner, Sukkur in whose presence the identification test of the appellant was held.
5. Naimatullah as P.W.6 Tapedar of the area, who prepared sketch of place of Wardat. Abdul Sattar P.W.B. Medical Officer who conducted the post-mortem of deceased P.C. Mir Muhammad Junejo.
6. Ali Nawaz as P.W.9, who had lodged the F.I.R. Khadim Hussain as P.W.10 Additional S.H.O. Of Police Station Thull Jacobabad, who acted as Mashir. Taj Muhammad as P.W.11 S.H.O. Of Police Station Rohri who recovered one empty of K.K. And blood from the place of Vardat.
7. ' The statement of the appellant was recorded under section 342, Cr.P.C. Who declined to examine himself on oath and also declined to produce any defence. In his statement he stated that he was innocent and has been falsely involved in the case at the instance of Khalid Khan who was friend of Baber Khan with whom the appellant had old enmity and that F.I.R. Was lodged against Raja Younis but he was challaned by the police.
8. ' The evidence available in the present case consists of ocular testimony, recoveries, medical evidence, identification test and confession of the appellant.
9. The complainant Muhammad Nawaz has fully implicated the appellant in his deposition by saying that the appellant fired from the Suzuki pick-up car at P.C. Mir Muhammad Junejo from his K.K.
10. Which hit him on his chest and near his shoulder then he fell down on the ground. This witness in his deposition has clearly stated that he personally knew appellant before the incident and in the F.I.R. The name of the appellant with specific role was mentioned. Learned defence counsel could not shake this witness during the cross-examination at the time of trial. There appears to be no motive for P.W.1 to depose against the appellant and the witness appears to be credible as nothing adverse was brought on record to discredit his evidence P.W.2 who was a Suzuki driver from which the appellant had allegedly fired at the deceased P.C. Mir Muhammad Junejo. In his deposition he has clearly stated that the deceased oame near the appellant and he said to him that he should go away from him as he was going after murdering man at the bungalow of Khan Munawar Khan.
11. The deceased came near him on which the accused fired from his K.K. At him which hit him and he fell down. In his cross-examination the above piece of evidence has not been challenged or denied.
12. No suggestion was given to the witnesses that the appellant had not fired upon deceased Mir Muhammad Junejo. No motive has been brought on record to suggest that this witness had reasons for falsely deposing against the appellant. P.W.4 Muhammad Hassan has also stated in his deposition that appellant made fire from K.K. Upon deceased Mir Muhammad directly which hit him on his chest who fell down, then accused Raja Younis along with driver of Suzuki run away towards Rohri. In his cross-examination he submitted that he knew accused as he had performed duty as Guard of Khan Munawar Khan when he was Minister. While cross-examining the witness, incident was not denied and no negative suggestion was given to the witnesses that the appellant had not fired upon deceased Mir Muhammad P.W.5 Habibullah Assistant Commissioner, Sukkur was examined who had conducted the identification parade of appellant. This witness in his deposition has stated that the appellant was identified through the witnesses Ghulam Abbas and Muhammad Hassan who had identified the appellant. P.W.6 Naimatullah Tapedar produced sketch of place of Wardat. No cross-examination has been made upon this witness. P.W.8 Abdul Sattar Medical Officer was also examined who has confirmed that deceased got fire-arm, injury wound of 2 c.m. Circular on right side of chest at a level of front of chest. He further deposed that death was result of shock haemorrhage due to injury on vital organs viz. Heart and lungs and injury No,1 was sufficient to cause the death in the ordinary course of nature. No cross-examination has been made upon this witness and his evidence has gone unchallenged and unrebutted. P.W.10 S.H.O.
13. Was also examined, he has stated in his deposition that he secured blood of deceased and one empty of K.K. From the place of incident. He has further stated that Suzuki from which the appellant had fired upon the deceased as also recovered and on 12-12-1986 accused was arrested from the police lock-up of police station "A" Section Sukkur. P.W.11 Taj Muhammad the S.H.O. Of Police Station Rohri in his deposition has stated that P.C. Muhammad Hassan shown him the place of incident and in presence of Mashir he prepared Mashirnama at the place of incident and one empty of K.K.
14. And blood were secured from the place of incident. He confirmed that the appellant was arrested by him on 12-12-1986 from "A" Section Sukkur.
15. ' The learned counsel for the appellant has contended that the confessional statement recorded in some other case cannot be relied upon in the present case, he submits that identification parade was illegally conducted as at the time of identification test the appellant was in handcuffed. He submitted that the evidence of the witnesses are full of contradictions and are not inspiring confidence and cannot be relied upon to convict the appellant. He further pointed out that other police constables with fire-arm weapons were present but none of them had attacked upon the appellant, which clearly belies the story of the prosecution case.
16. ' On the other hand learned A.A.-G. Has submitted that in all three eye-witnesses were examined out of which two are police constables and one independent person who have fully corroborated the evidence of each other. He further submitted that the medical evidence is in support of ocular evidence and no malice on the part of the police has been brought on record and there is nothing against the police as to why they would falsely implicate the appellant in this case.
17. We have carefully gone through the entire evidence with the assistance of learned counsel for the appellant. The evidence of eyewitnesses have gone unchallenged and learned defence counsel has failed to rebut the contention of the witnesses in their examination-in-chief. Through cross- examination nothing has been brought on record to suggest that the witnesses have any motive for falsely implicated the appellant. The appellant is known to two witnesses who have confirmed that the person who had fired from the Suzuki was the appellant and this fact has cleared the confusion regarding the name of the appellant. The medical evidence has fully supported the case of the prosecution, recovery of the empty from the place of Wardat and dead body has also supported the case of the prosecution. The medical evidence has no conflict with the ocular evidence. The eye-witness and the other witnesses have no enmity and no reason has been brought on record for falsely implicating the appellant in the murder case. The S.H.O. P.W.11 has produced the confessional statement of the appellant as Exh.B.-24. This confessional statement was recorded in Crime No,149 of 1986 of Police Station "A" Section Sukkur. This confessional statement was not put up to the appellant while recording his statement under section 342, Cr.P.C.
18. Therefore, the same cannot be used against the appellant.
19. ' To prove that the appellant was falsely implicated, he has neither examined himself on oath nor he produced any evidence in his defence. So as to disprove the charge and rebut the overwhelming evidence of prosecution.
20. ' In view of the above scrutiny of evidence the prosecution has proved the case beyond any reasonable doubt. The above appeal was dismissed and the confirmation case was allowed by our short order dated 10-8-2006 and the above are the reasons of the same.