JUDGMENT IMAM BUX BALOCH, J. --- Through this appeal; the appellants have assailed the judgment dated 15-10-2009, passed by the learned Sessions Judge., Jacobabad, in Sessions Case No.600 of 2008, State v. Ghulam Qadir Leghari and another, being Crime No.143 of 2007, registered at Police Station City, Jacobabad; for offences falling under sections 302, 324, 34, P.P.C., whereby the appellants were convicted under section under section 302(b), P.P.C. And sentenced to suffer R.I. For life as "Tazir" and to pay compensation of Rs.100,000 each to the legal heirs of deceased Sikandar Ali, in default of payment of compensation, each of the appellants shall suffer S.I. For a period of six months more. The benefit of section 382-B, Cr.P.C. Was also extended in their favour.
2. The facts of the prosecution case as per F.I.R., lodged by complainant Mubarak Ali Lashari, at Police Station City, Jacobabad, on 8-10-2007, at 9-30 a.m., are that prior to this incident there had taken place quarrel between them and accused Ghulam Qadir Lashari party over rotation of irrigation water such cases were registered by both the parties against each other at Police Station Dodapur and still the party of accused Ghulam Qadir were threatening the complainant party. As per F.I.R., on the day of incident i.e., on 8-10-2007, complainant with his nephew Sikandar Ali, aged about 35 years, father-in-law Sultan Ahmed Lashari and cousin Abdul Jabbar Lashari went together to Jacobabad town in connection with personal work, where at about 9-00 a.m., they all were present at the vegetable shop of one Baboo in Sabzi Market, Jacobabad, when from eastern side accused persons, namely,
(1) Ghulam Qadir son of Usman Lashari,
(2) Lal Muhammad, (3) Soobo, both sons of Ali Sher, (4) Baboo son of Arbab Lashari, all armed with T.T. Pistols, came there. Accused Ghulam Qadir challenged Sikandar Ali and directly fired from his T.T. Pistol upon him, who sustained injuries on his chest and arms; then accused Lal Muhammad fired from his T.T. Pistol directly at Sikandar Ali, who sustaining injuries at his stomach and legs, raised cries and fell down; then accused Soobo and Baboo fired from their T.T. Pistols at complainant and witnesses Sultan Ahmed and Abdul Jabbar, who managed to escape those fires by falling on the ground, as such the fires hit a passerby Zahoor Ahmed son of Dhani Bux.
Thereafter, the complainant party raised cries, whereupon accused ran away along with their weapons. The complainant party then noticed Sikandar Ali dead having sustained fire-arm injuries on his arms, legs and stomach. Zahoor Ahmed was having fire shot injuries on his left hand. The complainant leaving the witnesses with the dead body went to Police Station and lodged F.I.R.
3. After registration of 1. R., the police arrested the accused and submitted challan against them to face trial.
4. The charge was framed under sections 302, 324, 334, read with section 34, P.P.C., to which the appellants pleaded 'not guilty' and claimed trial.
5. During trial, prosecution examined P.W.1 Dr. Manz000r Hussain at Exh.6, who produced postmortem report of deceased Sikandar. Ali at Exh.6/A, Provisional and final Medico-legal certificates of injured, Zahoor Ahmed at Exh.6/B and 6/C respectively; P.W.2 tapedar Nehaldin of deh Abad at Exh.7, who produced sketch plan at Exh.7/A; P.W.3 complainant Mubarak at Exh.8, he produced F.I.R. Bearing Crime No.148 of 2007 of Police Station City, Jacobabad at Exh.8/A; P.W.4.
Abdul Jabbar at Exh.9; P.W.5 mashir Bhagyo at Exh.10, he produced mashirnama of injuries of injured Zahoor Ahmed at Exh.10/A, inquest report of deceased Sikandar Ali at Exh.10/B, mashirnama of place of incident, seeing dead body and recovery of empties at Exh.10/C; P.W.6 Abdul Ghani at Exh.12; P.W.7 injured Zahoor Ahmed at Exh.13; P.W.8 mashir HC Arbab Ali at Exh. 14, he produced mashimatna of arrest and recovery at Exh.14/A; P.W.9 SIP Muhammad Panah, at Exh.15; P.W. 10 SIO Ghulam Rasool Awan at Exh.17. After completion of prosecution evidence, the District Public Prosecutor closed the prosecution side vide his statement Exh.18.
6. Thereafter, statements of accused/ appellants under section 342, Cr.P.C. Were recorded, wherein they denied the allegations of prosecution and pleaded innocence. Then, the learned trial Court after hearing the parties passed the impugned judgment.
7. I have heard Mr. Faiz. Muhammad Larik learned counsel for the appellants and Mr. Altaf Hussain Surahio, learned State Counsel.
8. Counsel for the appellants contended that the ocular evidence is related and interested. The incident has taken place in Jacobabad city in front of shop of Baboo Sabzi Farosh, but even then no independent witness was examined by the prosecution. He stressed that complainant Mubarak Ali is the brother of deceased Sikandar, whereas P.W Abdul Jabbar is their relative. He contended that P.W Sultan Ahmed, who was relative of deceased, was not examined by the prosecution; which creates doubt in the prosecution cage. As regards the circumstantial evidence, learned counsel contended that the same is also interested and related, as mashir Bhagyo is cousin of complainant and residing in the same Village. He stated that injured Zahoor Ahmed, who is an independent person, has not supported the prosecution case, which - fact also creates doubt in the prosecution case. As regards the motive, learned counsel contended that there was enmity between the appellants and deceased on some quarrel and due to that enmity the appellants have been falsely implicated.
9. On the other hand, learned State Counsel contended that the incident has taken place in the broad-daylight i.e., at 9-00 a.m and the F.I.R. Was lodged within half an hour on the same day and the names of the appellants with specific role are mentioned in the F.I.R. The presence of complainant Mubarak Ali and P.Was. Abdul Jabbar and Sultan Ahmed is natural, as they have come together for purchasing the household articles from Jacobabad City. He contended that admittedly the incident has taken place in front of the shop of Baboo Sabzi Farosh, which fact corroborates the ocular evidence. Medical evidence also supports the ocular evidence. During postmortem examination, Dr.Manzoor Hussain noted the following injuries on the dead body of deceased:-
(1) One LTP wound 1 cm in diameter situated on right side of chest, 3 cm away from vertebrae column (wound of entry).
(2) One LTP wound 1.5 cm in diameter situated at right side of back of chest 3 cm away of vertebrae (wound of exit of Injury No.1).
(3) One LTP wound 1 cm in diameter situated at mid of abdomen, 4 cm muscles deep (wound of entry).
(4) One LTP wound 1.5. Cm in diameter situated at right side of back of abdomen, 8 cm away from vertebrae column (wound of exit Injury No.3)
(5) One LTP wound 1 cm in diameter situated at right forearm (wound of entry)
(6) One LTP wound 15 cm in diameter situated at right forearm (wound of exit of Injury No.5)
(7) One LTP wound 1 cm in diameter at left thigh anteriorly (wound of entry)
(8) One LIP wound 1.5 cm in diameter situated on left thigh medially (wound of exit of Injury No.7).
He further contended that the deceased has received in all four entry wounds and from the place of incident four empty bullets of T.T. Pistol were recovered on the same day. He contended that the appellants were arrested on 8-10-2007 and two T.T. Pistols, one from each of them, were recovered from their possession and the T.T.. Pistols recovered from the appellants contained two live bullets each. He contended that the medical evidence is in conformity with the ocular evidence; circumstantial evidence also supports the prosecution evidence. The presence of complainant Mubarak Ali and P.Was. Abdul Jabbar is natural, as they have come along with deceased Sikandar Ali and P.W. Sultan Ahmed for purchasing utilities and their evidence is trustworthy and confidence inspiring. He lastly contended that no material contradiction is pointed out by the learned counsel for the appellants to discard the evidence of complainant and P.W Abdul Jabbar,
10. I have considered the submissions of learned counsel for the parties advanced at' the bar and with their assistance I have scanned the entire evidence.
11. P.W-1 Dr. Manzoor Hussain has conducted postmortem upon the dead body of deceased Sikandar Ali and he has found four entry wounds and four exit wounds on the dead body of deceased and he stated that the injuries received by the deceased were caused by fire-arm. He also examined injured Zahoor Ahmed and confirmed that injured Zahoor Ahmed also received injuries by fire-arm.
12. Tapedar Nehaldin prepared sketch of the place of wardat.
13. Complainant Mubarak Ali stated that on the day of incident he along with his brother Sikandar Ali, father-in-law Sultan Ahmed and cousin Abdul Jabbar came at Jacobabad with a piece of work.
They reached adjacent to shop of Baboo Sabzi Farosh at about 9-00 a.m., where accused Ghulam Qadir, Lal Muhammad, Soobo and Baboo, all armed with T.T. Pistols, came there. Accused Ghulam Qadir after raising 'hakal', fired upon deceased Sikandar Ali, who received injuries; then accused Lal Muhammad also fired at deceased Sikandar Ali; accused Soobo and Baboo fired upon him (complainant) and P. Was Sultan Ahmed and Abdul Jabbar, but they managed to escape by falling on the ground on which one fire hit a passer-by, namely, Zahoor Ahmed Brohi. He stated that they have dispute with Ghulam Qadir on water rotation, and the accused were residing in same village.
14. During cross-examination, the defence has not been able to achieve any material contradiction from this witness, which may create doubt in his evidence. He has fully supported the version contained in his F.I.R.
15. P.W Abdul Jabbar also stated the same facts, as stated by complainant Mubarak Ali. This witness was also cross-examined at length, but the defence could not succeed to obtain contradictory evidence. The witness fully supported the version of complainant on every material aspect of the case.
16. Mashir Bhagyo stated that from the place of incident four empty bullets were recovered on the same day and the police visited the place of incident in his presence and in presence of co-mashir Abdul Razak.
17. P.W PC Abdul Ghani is the corpse bearer.
18. Injured P.W Zahoor Ahmed stated that while he was passing by the side of vegetable shop of Baboo Sabzi Farosh, in the meanwhile fire shots were made by someone, one shot hit on his left hand and his relatives took him to Police Station City, Jacobabad, where police referred him to Civil Hospital, Jacobabad, for examination and treatment. He stated that his 161, Cr.P.C., statement was not recorded by the police and he did not know the accused persons in the Court.
19. H.C. Arbab Ali is mashir of arrest and recovery of. T.T. Pistol and live bullets. He supported the arrest and recovery of weapons from the possession of the appellants.
20. SIP Muhammad Panah arrested accused/appellants Ghulam Qadir and Lal Muhammad from Mouladad Chowk, Jacobabad and recovered two T.T. Pistols from their possession containing each two live bullets. He prepared such mashirnama of arrest and recovery and registered separate cases under section 13(d) Arms Ordinance against the appellants.
21. SIO Ghulam Rasool investigated the case. He visited the place of wardat, recovered four empty bullets of T.T. Pistols, prepared the mashirnama of place of wardat and inquest report of dead body of deceased Sikandar Ali and dispatched the same for postmortem examination. He then recorded 161, Cr.P.C. Statements of the witnesses. As accused were arrested by SIP Muhammad Panah, who handed over the custody of appellants/accused to him along with T.T. Pistols and four live bullets recovered from them and F.I.Rs registered against the appellants under section 13(d) Arms Ordinance. After completing the investigation, he submitted challan against the accused/appellants. He was, cross-examined by defence counsel, during which he admitted that no enquiry was made from the shop-keepers in the vicinity of place of wardat with regard to the incident. He stated that complainant pointed out the place of incident to him.
22. I have minutely gone through the prosecution evidence and considered the submissions advanced at the bar.
23. Admittedly, the incident has taken place adjacent to the shop of Baboo Sabzi Farosh. The deceased is shown to have received four entry wounds and four exit wounds. It is stated by P.Was Nos. 3 and 4, namely, Mubarak Ali and Abdul Jabbar that appellants Ghulam Qadir and Lal Muhammad fired from their respective T.T. Pistols, which fact is confirmed by the evidence of Dr. Manzoor Hussain, who conducted autopsy upon the dead body of deceased Sikandar Ali. Ocular evidence is consisting upon P.Was Mubarak Ali and Abdul Jabbar, who are brother and cousin respectively of the deceased. In this part of the Province, independent persons do not come forward to interfere in the disputes of others, like the instant case, so as to create enmity against them. No material contradiction is pointed out by the Counsel for the appellants in the evidence of two witnesses. Their evidence is in consistence and in conformity with the medical evidence. Mere relationship of the A witnesses with the deceased is not sufficient to discard their evidence, if their evidence is otherwise confidence-inspiring. The number of empties recovered from the place of wardat match with the number of injuries received by the deceased at the time of incident. The fire shots have been attributed to the appellants by the P. Was. In their evidence. I have found no material contradiction or discrepancy in the evidence of the prosecution witnesses. Their evidence is confidence-inspiring and trustworthy. They have narrated the facts, as have occurred at the time of incident. There is no dent in the ocular evidence, which is otherwise in conformity with the medical evidence. Rule of independent corroboration is not an absolute and mandatory rule to be applied in each case, rather it is a rule of abundant caution, which is applied in the cases in which the direct evidence is not of the standard which alone can be considered sufficient for conviction, as observed in the case of Mehmood. Rashid v. The State 2003 SCM R 581. The complainant, who happens to be brother of the deceased, would not tell lie with regard to the involvement of the culprits responsible for the death of his real brother. Nor it could be expected to let-of the real culprits escort free and substitute the appellants. As regards the evidence of injured Zahoor Ahmed, who is a passerby, though he has not supported the prosecution case, but his presence is admitted, as he has received firearm injury on his hand. He belonged to a different community and to avoid his enmity with the appellants, he did not support the prosecution case; it appears that he has been won-over by the appellants or he was not interested to be indulged in the dispute of others. As regards circumstantial evidence, it has been established that at the time of arrest of the appellants two T.T. Pistols were recovered from the possession of the appellants, each containing two live bullets in its magazine, hence circumstantial evidence is also supporting the ocular evidence. Considering the prosecution case from all angles, I am of the considered view that the prosecution evidence is trustworthy, confidence-inspiring and natural. Medical Evidence is in conformity with the ocular evidence. The F.I.R. Was lodged promptly within half an hour and the complainant narrated true facts in his F.I.R. In view of all the above circumstances, the prosecution has proved its case beyond any reasonable shadow of doubt. In cases where prosecution establishes its case beyond any reasonable shadow of doubt, the normal punishment is penalty of death, but the learned trial Court has already taken a lenient view and awarded life imprisonment to the appellant. In my view, the learned trial Court has already taken lenient view and rightly convicted the appellants, therefore, finding no merits in the instant appeal, the same is dismissed and the conviction and sentence awarded by the learned trial Court are hereby maintained.
24. These are the reasons of my short order dated 11-4-2011..