1. ' IMAM BUX BALOCH, J.---Through this appeal, the appellants have assailed the impugned judgment dated 30-4-2009, passed by the learned 4th Additional Sessions Judge, Shikarpur, whereby convicting appellants Rahim Bux and Manzoor under section 302(b)., P.P.C. And sentenced them to suffer R.I. For life and fine of Rs, 50,000 each to be paid to the legal heirs of deceased Ghulam Qadir and in default of payment of fine both the appellants shall suffer R.I. For six months more. The appellant Rahim Bux was also convicted under section 404, P.P.C. And sentenced to suffer R.I. For three years. The benefit of section 382-B, Cr.P.C. Was also extended to the appellants.
2. ' The prosecution case according to F.I.R. Is that on 25-12-2003, complainant Haji along with his uncle Ghulam Qadir and co-villagers Rasool Bux and Ghulam Bashir were going by foot through link road to Garhi Yasin. His uncle Ghulam Qadir has a licensed pistol. When at about 1130 hours, they reached near village Juma Jatoi; from both sides of link road Manzoor Ahmed, Shahzado, Rahim Bux armed with guns, Jaro and Manthar having lathis all by caste Mohil emerged at the road and on the instigation of co-accused Jaro, who stated that as Ghulam Qadir is not withdrawing from the claim of land he would be killed. On such instigation Manzoor Ahmed, Shahzado and Rahim Bux fired from their respective guns at Ghulam Qadir, on which Ghulam Qadir also took out his licensed pistol from his fold and fired at accused Rahim Bux.
3. ' After receiving fire-arm injuries Ghulam Qadir fell down on the ground. The complainant and others raised cries as "murder-murder", on which people came running from village Jumo Jatoi. At the very moment Manzoor Ahmed took licensed pistol of Ghulam Qadir and all of them decamped from scene of wardat. The complainant leaving witnesses went to police station and lodged F.I.R.
4. After usual investigation police submitted challan.
5. ' On 5th July, 2005, charge was framed against appellants and co-accused Manthar and Jaro.
6. ' At trial prosecution examined P.W.1 Dr. Zubair Ali Shah at Exh.10 who produced post-mortem report of deceased at Exh.10-A, P.W.2 complainant Haji at Exh.11; he produced F.I.R. At Exh.11-A, slip of receiving dead body at Exh.11-B, P.W.3 Rasool Bux at Exh.12, P.W.4 Ghulam Bashir at Exh.13, P.W.4 A.S.-I.
7. Muhammad Ramzan at Exh.14, who is mashir of arrest and recovery, he produced mashirnama at Exh.14-A, P.W.5 S.I.P. Ghulam Sarwar Abro at Exh.16, P.W.6 I.O. Ali Bilawal at Exh.19, he produced mashirnama of arrest of accused Jaro and Manthar and recovery of lathis from them at Exh.19-B, Mashirnama of place of vardat at Exh.19-B, mashirnama of arrest of accused Rahim Bux and seeing his injuries at Exh.19-C, letter to Medical Officer at Exh.19-D, mashirnama of recovery of gun from accused Rahim Bux at Exh. 19-E, letter to D.P.O. For examination of gun at Exh. 19-F, mashirnama of producing licence of T.T. Pistol of deceased at Exh.19-G, photocopy of F.I.R. In case under section 13-DAO at Exh. 19-H, mashirnama of arrest of accused Jaro and Manthar at Exh. 19-I, inquest report of deceased at Exh. 19-J, and roznamcha entry at Exh. 19-K, P.W.7, H.C. Manzoor Ahmed was examined at Exh. 21, he was corpus bearer, P.W.8 Mashir Ali Nawaz was examined at Exh.
8. 22.
9. ' Then statements of the appellants along with co-accused were recorded under section 342, Cr.P.C. And after hearing arguments of learned counsel for the parties the appellants were convicted as stated above.
10. ' I have heard learned counsel for appellants and learned State counsel and with their assistance have minutely and carefully scanned the evidence.
11. ' Learned counsel for the appellants contended that the appellants have acted in self-defence as according to the prosecution story appellant Rahim Bux received fire-arm injuries, which have been suppressed by prosecution. He further contended that the prosecution case is pregnant with material contradictions and discrepancies. He further contended that medical evidence, ocular evidence and motive is shrouded in mystery.
12. ' He further contended that on the same set of evidence two co-accused have been acquitted by the trial Court and the benefit of the same evidence may also be extended to the appellants. At the last he contended that defence has created so many doubts in the prosecution case and benefit of which may be extended in favour of the appellants.
13. ' On the other hand learned counsel appearing for the State argued that the prosecution witnesses are natural and confidence-inspiring having no animosity to depose falsely against the appellants.
14. The incident had taken place in broad-daylight. She further contended that F.I.R. Is promptly lodged and names of the appellants were mentioned in the F.I.R. With specific role. She further argued that the defence has failed to create dents in the prosecution case. No material contradictions and discrepancies have been pointed out by the defence counsel. She lastly contended that prosecution has established its case beyond any shadow of doubt against the appellants and learned trial Court has rightly convicted the appellants.
15. ' Dr. Zubair Ali Shah, who conducted autopsy on the dead body of deceased Ghulam Qadir and found the following injuries:--
(1) One lacerated punctured wound measuring 5 cm in diameter with inverted margins, no blackening around the wound present over left side of parito temporal region of head (wound of entry).
(2) One lacerated punctured wound measuring 10cm in diameter and everted margins along with protrusion of brain matter present over right side of parietal region of head (wound of exit).
16. ' The medical officer opined that death has occurred due to injury caused at vital part i,e,, head and he further opined that deceased received fire-arm injuries. The medical officer has further stated that the assailant was on left side of the deceased when he opened fire upon deceased. He further stated as per his opinion single fire-arm shot received by the deceased.
17. ' P.W.2 Complainant Haji stated in his evidence that on the fateful day he along with deceased and co-villagers Rasool Bux and Ghulam Bashir, while proceeding to Garhi Yasin through link road from Jado Kalhoro, they were going on foot and when they reached near village Jumo Jatoi, at about 11- 30 a.m. Accused Manzoor, Shahzado, Rahim Bux, Hub Ali having shotguns, Mumtaz and Jaro having lathis had emerged at the place of vardat and accused Jaro instigated others to kill Ghulam Qadir, as he is not withdrawing from the land. On his instigation Manzoor Ahmed, Shahzado and Rahim Bux had opened the fires with intention to commit murder of his uncle Ghulam Qadir. He also stated that Ghulam Qadir was also having licensed T.T. Pistol and he took out the same and opened fire and due to his fire accused Rahim Bux received fire-arm injury. Ghulam Qadir succumbed to injuries. He further stated that he after leaving P.Ws. Rasool Bux and Ghulam Bashir at dead body of deceased went to police station and lodged F.I.R. In his cross-examination he has stated that P.Ws. Are his relatives, so also mashir Ali Nawaz is son of P.W. Rasool Bux. Co-mashir Shahzado is his son. Complainant has further stated that Juma Jatoi village is about 100 paces away from place of incident. He stated P.Ws. Rasool Bux and Ghulam Bashir and deceased were cultivating separate lands adjoining to their village. Ghulam Qadir was also running business of grain and he used to come and go to Garhi Yasin town. He further stated that accused persons had emerged from Jaee bushes at the place of incident. In all he has supported contents of the F.I.R.
18. ' P.W.3 Rasool. Bux has deposed that deceased Ghulam Qadir was his caste fellow and he knew him and that the incident took place about four years back. He has further deposed that he along with Ghulam Qadir, Ghulam Bashir and Haji were proceeding from their village to Garhi Yasin and when they reached near village Jumo Jatoi, it was 11-30 a.m. When accused Jaro, Manzoor Ahmed, Shahzado, Rahim Bux Manthar and Hub Ali had appeared. Manthar and Jaro were having lathis, while rest were with shotguns. He has further stated that accused Manzoor, Shahzado and Rahim Bux opened fire and so also Ghulam Qadir has opened fire from his T.T. Pistol. Both the parties had received fire-arm injuries simultaneously Ghulam Qadir has fallen down on ground as he had received the injuries at his head and he had taken his last breath. Accused Manzoor took out pistol of Ghulam Qadir and says that he has taken the revenge and also removed to injured Rahim Bux along with them and they were raising the slogans.
19. ' P.W. Ghulam Bashir has deposed that on the fateful day they were going to Garhi Yasin and when they reached near village Jumo Jatoi it was about 11-30 a.m. When accused persons, namely, Manzoor, Rahim Bux, Shahzado, Hub Ali, Jaro and Manthar emerged there from both sides of the road. Manzoor, Rahim Bux, Shahzado and Hub Ali were having stotguns while Jaro and Manthar were having lathis. Jaro instigated to other that Ghulam Qadir is within their approach and he is not withdrawing his claim over the land and he should be murdered. He has further stated that Ghulam Qadir took out pistol from his fold and persons from both the sides opened the fire.
20. Ghulam Qadir received firearm injuries, so also Rahim Bux had received injuries. Accused Manzoor taken out pistol from Ghulam Qadir, Ghulam Qadir had taken his last breath because of his fire- arm injuries.
21. ' Prosecution also examined A.S.-I. Muhammad Ramzan, with regard to arrest of accused Manzoor and recovery of gun from him; he has supported arrest and recovery from him. The Investigating Officer, S.I.P. Ali Bilawal was also examined by the prosecution, who has supported whole the investigation of this case and in support of evidence of I.O. Prosecution lso examined mashir Ali Nawaz, who has also supported mashirnama of recovery, mashirnama of place of vardat and recovery from spot, mashirnama of arrest of accused Rahim Bux and seeing his injuries, mashirnama of recovery of gun from accused Rahim Bux.
22. I have minutely examined the evidence produced at trial by the prosecution. The contention of the learned counsel for the appellants that the appellant Rahim Bux has acted in self-defence has no force as during trial appellant Rahim Bux failed to produce any material evidence/documents to justify plea of self-defence. On the contrary appellant Rahim Bux in his statement recorded under section 342, Cr.P.C. Has not produced any evidence; even he has not examined doctor, who had medically examined and treated him if he had received any injury during the incident.
23. ' The ocular evidence is consisting of complainant Haji, and P. Ws. Rasool Bux and Ghulam Bashir, who are unanimous on the material points. The learned counsel for the appellant has not pointed out any material contradictions in their evidence. Evidence of medical officer, who conducted autopsy on the dead body of deceased also supports the ocular evidence. The prosecution in shape of circumstantial evidence examined Investigating Officer, S.I.P. Ali Bilawal, and mashirs, they have produced mashirnama of recovery, mashirnama of place of vardat, mashirnama of recovery of empty cartridges from place of vardat and evidence of mashir Ali Nawaz is corroborated by the evidence of I.O. Ali Bilawal, A.S.-I. Muhammad Ramzan and S.I.P. Ghulam Sarwar.
24. At the time of arrest of appellant Rahim Bux he was found in injured condition and he has not exaplained his injury in his statement recorded under section 342, Cr.P.C. Though specific question that deceased Ghulam Qadir also fired from his licensed pistol towards you which hit you and co- accused removed you from the vardat, was put to him, but he has simply denied the same.
25. ' After evaluating and appreciating the evidence produced at trial by the prosecution, I am of the considered view that prosecution evidence is inspiring confidence, natural and trustworthy. No material contradictions existed in the evidence of prosecution witnesses, but they are unanimous on the material points.
26. ' For the foregoing reasons I am of the opinion that prosecution has established its case against the appellants beyond any reasonable doubt hence instant appeal has no merits and is therefore dismissed. The conviction and sentence recorded by the learned trial Court is hereby maintained.