' GHULAM DASTAGIR A. SHAHANI, J.-- The appellants above named being aggrieved and dissatisfied with the judgment passed on 11-11-2005 by learned 1st Additional Sessions Judge, Dadu have preferred this appeal, whereby trial Court in S.C. No,6 of 2004 (Crime No,101 of 2003 of Police Station Rukan Dadu) under sections 302/460/34, P.P.C. Convicted the appellants under section 265-H(2), Cr.P.C. For offences under section 302/34, P.P.C. And sentenced them to suffer imprisonment for life with further order to pay compensation of Rs,50,000 each, to the legal heirs of deceased or in default thereof to further undergo rigorous imprisonment for 6 months and under section 460, P.P.C. Sentenced them to rigorous imprisonment for 10 years with further order to pay fine of 25,000 each or in default thereof to further undergo rigorous imprisonment for 6 months.
' The facts in nutshell are that one Muhammad Hanif Gilal lodged his report on 17-12-2003 at about 1400 hours, which was initially registered as N.C. Subsequently, it is incorporated in F.I.R. Of Police Station Rukkan, alleging therein that he is a tailor master at Seeta Road. He, his father, uncle Abdul Ghafoor and cousin Abdul Waheed son of Abdul Hameed Gilal are residing in Bungalow situated at Government Hospital Seeta Road. On 16-12-2003, complainant, his father Ghulam Shabbir, uncle Abdul Ghafoor and cousin Abdul Waheed along with other family members after having dinner, closed the gate of Bungalow and went to sleep and bulbs were lightening. On 17-12-2003 at 0300 hours night, there was noise in the room of the bungalow, whereupon they all woke up and came out of the room and raised cries of thief, thief, they saw accused coming out from the room and on the light of bulb two accused were identified who were to be Sultan son of Muhammad Waris Rind and Moharram son of Jan Muhammad Rind residents of Government Hospital Seeta Road and one was unidentified. Accused Sultan was armed with double-barrel gun and accused Moharram and unidentified accused were armed with hatchets and the accused persons in order to go outside went towards the compound wall, meanwhile his father went ahead to the accused persons and accused Sultan Rind fired from his double-barrel gun upon him with intention to kill him which he sustained on left arm and chest and fell down. Accused ran away by jumping the wall of the bungalow and complainant party saw that father of the complainant Ghulam Shabbir was dead and thereafter the complainant appeared at P.P. Sita for information. After completing essential proceedings handed over the dead body to them for funeral ceremony and complained lodged the report.
2. After usual investigation the police challaned the accused before Court of law. However, a formal charge was recorded to which the accused pleaded not guilty and claimed their trial.
3. In support prosecution examined complainant Muhammad Haneef, eye-witnesses Abdul Ghafoor, Abdul Waheed, Mashirs Nazir Ahmed, Muhammad Sadiq and Investigation Officer Ghulam Sarwar, M.O. Dr. Abdul Hakeem, H.C. Iftikhar Ali, A.S.I.P. Ghulam Hyder and Ali Nawaz H.C.
Respectively. After examination of such witnesses, D.D.A. Closed the side of the prosecution.
Thereafter statements of accused were recorded under section 342, Cr.P.C. Wherein the accused denied the allegations levelled against them by the prosecution, but neither they examined themselves on oath nor produced any witness in their defence. The learned trial Court after hearing arguments of both the learned counsel framed the following points for determination:-- "POINTS"
(1) Whether deceased Ghulam Shabbir died due to unnatural death?
(2) Whether on 17-12-2003 at 0300 hours present accused persons duly armed with deadly weapons i.e. DBBL and hatchet entered into the house of complainant Muhammad Hanif situated in Government Hospital Seeta Road, Taluka K.N. Shah and committed murder of deceased Ghulam Shabbir by causing him fire-arm injuries?
(3) What offence, if any, has been committed by the accused?
4. Heard learned counsel for the appellants as well as to Mr. Zafar Ahmed Khan State Counsel and perused the available record. Learned counsel for the appellants contended that F.I.R. Is recorded with 11 hours delay without plausible explanation and matter is unwitnessed incident. According to him there are major contradictions and case has been registered against the appellants at the instance of one police constable. So far appellant Moharram is concerned, he stated that he has not caused any hatchet blow to deceased Ghulam Shabbir, but allegtions against Moharram is that he was present with hatchet at the time of incident, and further that crime weapon DBBL gun recovered from accused Sultan and hatchet recovered from accused Moharram as alleged is also foisted upon them and not a single article alleged to have been taken by the accused. He referred cases of Dholu and another v. The State 2002 PCr.LJ 690, Muhammad Arif v. The State 2007 PCr.LJ 432, Muhammad Ishaque v. The State 2007 SCM R 108, Mst. Sajida Bibi v. The State 2007 PCr.LJ 1231, Qudratullah v. Maisam and another 2005 PCr.LJ 1667 and Hidayat Ali and others v. The State 1994 PCr.LJ 1112 respectively. Whereas, prosecution case is that accused Sultan and Moharram with DBBL gun and hatchet entered into the house of complainant and accused Sultan fired gunshot injury, with the result Ghulam Shabbir died, and supported the judgment of the trial Court to be legal stating that evidence has been properly appreciated and there is no misreading and non-reading of evidence and judgment is passed after providing full opportunity to the parties. Reliance is placed by him on the case of 2005 PCr.LJ 337, 2007 SCM R 108 and 2005 PCr.LJ 1667 respectively.
5. After hearing to the learned counsel and going through particular law referred above and evidence available on record, there are no major contradictions and minor contradictions in respect of time date etc., if any, are by virtue of time and nothing has come on record that there was any enmity with accused party even not suggested so far and witnesses have fully supported to the version of complainant. Ocular evidence has also been supported by medical evidence. So far Point No,1 is concerned, death of Ghulam Shabir is not said to be a natural as nobody disputed the same, doctor has also pointed that the death has occurred due to fire-arm injuries causing heavy haemorrhage and shock resulting into death, in ordinary course of nature and the above injures are sufficient to cause death and the injuries were ante-mortem in nature. As such it is proved beyond any doubt that deceased Ghulam Shabir died due to unnatural death by receiving fire-arm injuries. So for Points Nos.2 and 3 to the extent, whether accused persons duly armed with deadly weapons entered into the house of complainant Muhammad Haneef and committed murder of deceased Ghulam Shabbir by causing him fire-arm injuries Or not, and further that what offence has been committed by the accused. In this respect burden lies upon the prosecution to prove the case against accused as alleged in the F.I.R. Prosecution in support of the case examined in all ten witnesses and corroborated by the 'medical evidence so also a recovery of crime weapons from the appellants. So far the complainant's evidence is concerned, he has deposed that particular incident, took place in the odd hours at about 3-00 a.m. On 17-12-2003, when they were sleeping with his family members including deceased Ghulam Shabir his father as well as uncle Abdul Ghafoor and Abdul Waheed respectively and they woke up on the noise and saw three persons inside their houses, who were taking their house hold articles and identified the accused namely Sultan having DBBL gun, whereas Moharram and unidentified persons were armed with hatchet inside their house, they raised cries of "theft, theft", Ghulam Shabbir wanted to apprehend the accused but Sultan opened fire upon him, who fell down and all the accused persons ran away.
Identification is made on electric light. Further evidence is that on their cries some neighbours also appeared at the place of incident. At the first instance NC was recorded then F.I.R. The aforesaid version of the complainant is fully supported by the eye-witnesses namely Abdul Ghafoor who has stated that at about 3-00 a.m. At night time on 17-12-2003, all family members were sleeping including Ghulam Shabbir, Muhammad Haneef, Abdul Waheed and others and they woke up on the noise and came out from their rooms on the light of bulb found accused Sultan with gun whereas Moharram and one unidentified person having hatchet found inside their house and they raised cries of "theft, theft" and Ghulam Shabbir his brother wanted to apprehend the accused person as such accused Sultan opened fire on his brother, which hit to his chest and fell down and accused persons ran away. Abdul Ghafoor has also stated that accused namely Moharram and another accused also caused hatchet blow on his brother and received injury on his left arm. So far P.W. Abdul Waheed is concerned he has also supported to the version of complainant that he was sleeping along with his family members in a house including his uncle namely Abdul Ghafoor. They woke up on the noise they came out from the room in Waranda and on electricity bulb saw three persons came out from the room from whom one was Sultan having DBBL gun, Moharram having hatchet and one unidentified person having hatchet respectively and when his uncle Ghulam Shabbir went to close the accused persons, Sultan opened fire upon him which hit to his chest and his left arm, his uncle Ghulam Shabbir fell down after receiving fire-arm injuries, then accused Moharram also gave backside of hatchet blow to him and accused persons went away after scaling over the boundary wall and they found Ghulam Shabbir died. Muhammad Haneef went to police station for recording of F.I.R. Police came at the place of incident at about 5-00 a.m. And recorded his statement under section 161, Cr.P.C. He identified both the accused to be same. Mashir Nazeer Ahmed (police constable) states that hatchet was recovered in his presence on the pointation of accused Moharram on 28-12-2003, whereas, Investigating Officer of the case namely Ghulam Sarwar recovered DBBL gun and two empty cartridges on the pointation of accused Sultan in his presence on 29-12-2003. Whereas, Mashir Muhammad Sadiq states that in his presence, place of incident was inspected on 17-12-2003 and co-Mashir was one Abdul Hameed and police recovered one empty cartridge with yellow colour. He further states that police also recovered blood-stained earth from place of incident and sealed at the spot and produced Mashirnama.
According to him an inquest report of the dead body was also prepared in his presence. S.I.P.
Ghulam Sarwar Investigating Officer of the case states that on 17-12-2003 he was posted at Police Station Rukkan and received a copy of F.I.R. For the purpose of investigation. He visited the place of incident and met with A.S.-I. Ghulam Haider and received memo. Of place of incident and other relevant documents and recorded statement under section 161, Cr.P.C. Of P.Ws. Namely Abdul Waheed and Abdul Ghafoor and received custody of both the accused from police post Seeta Road, and during investigation accused Moharram confessed his crime and on his pointation he recovered one hatchet in presence of Mashirs. He has further stated that accused Sultan also confessed his crime and on his pointation recovered a DBBL gun and two cartridges from room of his house in presence of Mashirs and same were sent to Ballistic Expert for opinion and also sent a blood-stained earth to Chemical Examiner for report, which he subsequently received including post-mortem report from doctor and identified both the accused present in Court to be same and after completing investigation challan was submitted by him. So far case-law referred by learned counsel for the appellants/accused is so distinguishable and not similar or identical to the present matter and case-law referred by the State Counsel is relevant to some extent. However, the case of Dholu and another v. The State 2002 PCr.LJ 690 is concerned, in that case complainant had not stated in the F.I.R. As to which of the accused fired at which part of the body of the deceased.
Prosecution witnesses were also silent in their evidence in that regard. Not only this but statements of witnesses were also contradictory to the statement of the complainant. So far case of Muhammad Arif v. The State 2007 PCr.LJ 432 is concerned, there were material contradictions in the statement of the prosecution witnesses, delay in dispatching crime-empties to Forensic Science Laboratory, so also violation of section 103, Cr.P.C. And habeas corpus petition was filed by mother of one of the accused whereas pistol allegedly left by one accused and recovered from the spot was never sent to Forensic Science Laboratory. So far the case of Muhammad Ishaque v. The State 2007 SCM R 108 also having also different facts as gun recovered from possession of accused did not match with all four empties allegedly recovered from place where accused fired at the deceased, site plan showed that deceased was fired at from a distance of 132 ft. But there was burning on all four inlet wounds of deceased. Burning on wounds was to occur when muzzle was at a distance of 5 to 6 ft. From victim and burning from a distance of 132 ft. Was not possible. Not only this but neither any pellets were recovered from premises (mosque) nor any child receiving lesson from complainant was ever examined. As regards the case of Mst. Sajida Bibi v. The State 2007 PCr.LJ 1231 is concerned, having different facts as place from where recovery of Chhuri allegedly was made was not exclusively owned and possessed by the accused but was accessible to everyone. So far as case of Qudratullah v. Maisam and another 2005 PCr.LJ 1667 is concerned, acquittal is made not only on the ground of delay, but there were other factors also. So far ordinary delay of two hours, it has been held that ordinary delay of two hours as was in the prosecution as in lodging report could not have much significance, but circumstances of the case had manifestly suggested that time was consumed in fabricating the story of prosecution has not been able to prove the case against the accused beyond reasonable doubt. The case of Hidayat Ali and others v. The State 1994 PCr.LJ 1112, as referred by the learned counsel for the appellants is concerned, the Honourable Court has observed that eyewitnesses had made contradictory statements with dishonest improvements and they being closely related to the deceased could not be relied upon without independent and strong corroboration. So far present case is concerned incident has been taken _place in odd hours inside the house of the complainant party and circumstances are so different. Even otherwise, corroboration did not mean that it should come from an independent source, but anything in circumstances which could satisfy the Court to believe that witness has spoken the truth and his statement could safely be considered to be corroborated evidence. Not only this accused being known to eye-witnesses previously no question of misidentification could arise in the present matter. Promptly lodging N.C. Then F.I.R. Was sufficient proof of presence of prosecution witnesses at the scene of occurrence. Even otherwise occurrence had taken place in odd hours inside the house of complainant party. Evidence available on record shows that appellant Sultan was nominated in the F.I.R. Having DBBL gun entered into the house of complainant at odd hours and on the light of electric bulb was identified and fired upon the deceased, which hit him who wanted to apprehend the accused. Version of the complainant is fully corroborated/supported by the eye-witnesses from all aspects. The recovery of empty from the place of Wardat inside the compound wall of the bungalow, recovery of DBBL gun at pointation of appellant Sultan from room of his house and the opinion of the doctor that death has occurred due to fire-arm injuries and fire was made upon deceased within 3 ft. Is so relevant in respect of the involvement of accused/appellant Sultan.
6. In view of above facts and circumstances, accused/appellant Sultan is rightly nominated and fully involved and guilty of the offence and rightly convicted by the trial Court on the basis of evidence and nothing has come on record on the basis of which such evidence may not be believed. Therefore, conviction and sentence awarded to appellant/accused Sultan is maintained.
No illegality or infirmity in the judgment passed by the trial Court is found or pointed out and finding of trial Court below are on the whole reasonable and are not arrived at by disregarding any provision of law or any accepted principles concerning appreciation of the evidence. So far case of co-accused namely Moharram is concerned that seems to be distinguished, as case of prosecution is that he was with hatchet at the time of incident, whereas the prosecution witnesses namely Abdul Ghafoor has deposed that "accused Moharram and another unidentified accused also blow hatchet on his brother and received hatchet injury on his left arm". Whereas P.W. Abdul Waheed has stated that "accused Moharram also gave backside of hatchet blow to the deceased".
Whereas doctor has not stated that there was any hatchet injury on the person of deceased, it creates doubt in the mind. Now there remains a question of recovery of the hatchet from appellant/accused Moharram, which can be easily foisted upon anyone and same is the case of appellant Moharram. Therefore, looking to the aforesaid circumstances and evidence benefit of doubt can be extended to accused/appellant Moharram and is therefore, acquitted, and the conviction and sentence passed by the trial Court is modified to that extent, and order that he may be released forthwith if not involved in any other case. With above observations and modification the appeal is disposed of in the above terms.