1. JUDGMENT IMAM BUX BALOCH, J.---By this judgment we propose to decide Criminal Appeal No.D-42 of 2007. The appellant through this appeal assailed the judgment dated 22-1-2007 passed by the learned Special Judge, STA, Larkana convicting and sentencing the accused to suffer R.I., for life for offence punishable under sections 302(b) and 34, P.P.C.
2. F.I.R. No.9 of 2001 was registered at Police Station Naudero, District Larkana on 13-2-2001 at 1730 hours. Complainant was one Moula Bux son of Karim Bux Jarwar, he stated that about 7/8 years back, Muhammad Paryal son of Umed Ali Jarwar was murdered and in the said case he was challaned. Thereafter, Imdad Ali was saying that he will take revenge of his father. Today he along with his brother Ali Gul jointly left their house and were going towards hotel for taking tea. Abdul Rasheed son of Muhammad Jaffar, Abdul Hakeem son of Rasool Bux and Abdul Aleem son of Muhammad Moosa by caste Jarwar no Khan Wah were coming on their backside. When they both brothers at about 1700 hours, reached at the plot of Noor Muhammad his brother Ali Gul was 6/7 paces ahead from him. They saw that from the Otaq of Imdad Ali, the accused Imdad Ali son of Muhammad Paryal, Muhammad Sharif son of Qadan by caste Jarwar,Ahmed Ali son of Hamz Ali, Muhammad Bux son of Ali Muhammad by caste Jarwar came out. The accused Imdad Ali and Ahmed All were having Kalashnikovs in their hands, accused Muhammad Sharif was having Pistol in his hand and the accused Muhammad Bux was' having gun in his hand. The accused lmdad Ali gave them hakal that they have killed his father Muhammad Paryal therefore they will not be spared. On saying so the accused Imdad Ali, Ahmed Ali and Muhammad Sharif fired shots from their weapons upon his brother Ali Gul, which hit him and he fell down while raising cries on the ground. The accused Muhammad. Bux fired shots from his gun in the air upon them, and asked them to remain silent. They due to fear remained silent and did not go near the accused persons.
3. Then all the accused while raising slogans along with their weapons decamped towards northern side. They then saw their brother Ali Gul sustained injuries, was bleeding and was dead on the spot.
4. Complainant then leaving P.W. Abdul Rasheed, Abdul Hakeem and Abdul Aleem Jarwar over the dead body of his brother proceeded to Police Station for lodging F.I.R. And lodged the F.I.R. As stated above.
5. After usual investigation the case was challaned and charge was framed against appellant/accused Imdad Ali alias Abdul Rauf and Bakhshan on 8th November, 2001. Again after arrest of accused Muhammad Sharif the amended charge was framed against the accused Imdad Ali alias Abdul Rauf, Bakhshan and Muhammad Sharif on 28th May, 2002.
6. The record shows that the legal heirs of the deceased Ali Gul compounded the offence with accused Muhammad Sharif and he was acquitted under section 345(6), Cr.P.C. The case proceeded against the remaining accused.
7. During trial on 27-6-2005 learned counsel for accused Bakhshan filed statement stating therein that accused Bakhshan was expired on 20-6-2005, hence on 6-9-2005 case against accused Bakhshan was abated.
8. During trial prosecution examined Moula Bux, the complainant as P.W.1 at Exh.7, he has produced F.I.R. At Exh.7-A, Abdul Rasheed as P.W.2 at Exh.15, he has produced 164. Cr.P.C. Statement at Exh.15- A, P.W. Abdul Aleem was examined as P.W.3, at Exh.16, he has produced his 164, Cr.P.C. Statement at Exh.16-A, Imdad Ali Tapedar of deh Khanwah as P.W.4, he has produced sketch in triplicate. Dr. Amanullah as P.W.5 at Exh.21, he has produced inquest report at Exh.21-A, post mortem report at Exh.21-B. Muhammad Azam P.W.6 at Exh.22, he has produced mashrnama of arrest and recovery from accused Imdad Ali at Exh.22-A. Process server Asif Ali at Exh.23, he has produced statements of Nekmards, duplicate copy of death certificate and report of S.H.O. At Exh.23-A to Exh.23-E.
9. Sirajuddin Shaikh P.W.5 at Exh.25, he produced 164, Cr.P.C. Statement at Exh.25-A. Abdul Wahid P.W.8 at Exh.26 who was a Primary School Teacher, he has produced inquest report of dead body of Ali Gul as Exh.26-A, mashirnama of place of incident and recovery of empty shells at Exh.26-B, mashirnama of arrest of accused Imdad Ali at Exh.26-D. HC Nizamuddin P.W.9 at Exh.28. Inspector Abdul Nabi Rind as P.W.10, at Exh.29, he has produced entry at Exh.29A, ballistic expert report at Exh.29-B, Chemical report at Exh.29-C. After completing the evidence produced by the prosecution the statement of appellant was recorded at Exh.31 and after hearing the learned counsel for the respective parties the impugned judgment was passed.
10. We have scanned the entire evidence with the assistance of learned counsel for the respective parties. P.W.1 Moula Bux has stated in his evidence that on 13-2-2001, he along with his brother Ali Gul left their house for taking tea at the Hotel. His relatives Hafiz Abdul Rasheed, Abdul Aleem and Abdul Hakeem were also following them. His brother Ali Gul was 6/7 paces ahead from them. When they reached near the plot of Noor Muhammad at that time from the Otaq of Imdad Ali accused Imdad alias Abdul Rauf, Ahmed Ali Muhammad Sharif and Muhammad Bux came out. Accused Imdad was armed with K.K. Ahmed Ali was also armed with K.K. Sharif was armed with Pistol and Muhammad Bux was armed with SBBL gun. Accused lmdad challenged them by saying that today they will not be spared as they have committed the murder of his father. By saying so accused Imdad, Ahmed Ali and Muhammad Sharif made straight fires at his brother Ali Gul who received firearm injuries and fell down on the ground. Thereafter accused Muhammad Bux fired in the air and asked them to keep silent. After departure of the accused, he saw that his brother has sustained fire-arm injuries and was expired at the spot. Leaving P. Ws. At the dead body of his brother he went to Police Station and lodged the F.I.R. In cross he admitted that P.W. Hafiz Abdul Rasheed is his relative and P.W. Abdul Aleem is brother-in-law of his brother (deceased) Ali Gul and P.W. Abdul Aleem is his cousin. He admitted that he was accused in the murder case of father of Imdad. He also admitted that they have inimical terms with the accused party. He admitted that his house and house of P.W. Abdul Rasheed, Abdul Aleem are separate. He denied the suggestion that on the day of incident his brother was chowkidar in Sugar Mill Naudero. He denied the suggestion that he was dismissed from service. He admitted that during the days of service his brother was social. He admitted that sometimes he used to accompany with his brother for taking tea in the Hotel and not regularly. He admitted that he knew Ghulam Qadir. Noor Muhammad Rasool Bux but he has denied that he has enmity with them. He admitted that he was visiting and talking terms with Noor Muhammad. He admitted that at the time of firing no body except witnesses have come and after firing many persons of village have gathered there. He admitted that previously he was in police department but was dismissed from service due to murder case levelled against him. He admitted that he has no telephone connection P.W.2 Abdul Rasheed has stated that on the day of the incident i.e. On 13-2-2001 when he along with his relatives Abdul Aleem and Abdul Hakeem were going in their village at 5-00 p.m. Ali Gul and Moula Bust were also going ahead. When Ali Gul reached at the plot of Noor Muhammad, accused Imdad having K.K., accused Ahmed Ali having K.K. Sharif having pistol in his hand and accused Muhammad Bux having gun came out and accused Imdad challenged Ali Gul that they have previously committed murder of his father, therefore today they will not be spared. At the same moment accused Imdad, Ahmed All and Sharif fired shots from their respective weapons upon Ali Gul who sustained injuries and fell down on the ground. Accused Muhammad Bux challenged them and directed them to be keep silent and made fires in the air. They saw that Ali Gul succumbed to the injuries at the spot. He stated that complainant leaving them at the dead body went to Police Station and lodged F.I.R. He stated that his 161, Cr.P.C. Statement was recorded on the next day of the incident. His 164, Cr.P.C.
11. Statement was also recorded in the Court of Mukhtiarkar and FCM Ratodero. In cross-examination, he stated that accused Imdad produced K.K. Before the police. He was not present there and neither acted as mashir. He admitted that the K.K. Produced in the Court was of Imdad as he had heard so. He admitted that mashir Azam and Abdul Batin are his caste fellows. He admitted that mashir Laiif is his son. He stated that he does not remember whether Abdul Hakeem at the time of incident was in Army service. He admitted that Abdul Aleem at the time of incident was not in service. He stated that he along with Abdul Aleem and Abdul Hakeem with their consultation were going for their work on the day of the incident. He stated that at the time of incident complainant was not doing any job but he was looking after his fish farm. He again says that complainant at the time of incident was in police service. He states that incident took place at the distance of 30/40 paces away from the house of the deceased. He admitted that at the time of incident accused Imdad and complainant were on inimical terms. He along with Moula Bux, Habibullah and Muhammad Mithal were accused in the murder case of father of accused Imdad. He stated that mashir Abdul Wahid is brother in law of accused Imdad. He admitted that accused Imdad had married with the sister of accused Abdul Wahid. He admitted that 300/400 houses are situated in the village and the people of different castes are residing in the said village, P.W. Abdul Aleem stated in his evidence that on the day of incident i.e. 13-2-2001 he along with Abdul Hakeem and Abdul Rasheed were going for their on work at 5-00 p.m and their relatives Ali Gul and Moula Bux were also going ahead. When Ali Gul reached upon the plot of Noor Muhammad Jarwar they saw from the Otaq of Imdad Ali Jarwar accused persons namely Imdad Ali alias Abdul Rauf armed with Kalashnikov, Muhammad Sharif with pistol, Ahmed Ali with K.K. Muhammad Bux with gun were coming where accused Imdad challenged Ali Gul that previously they had murdered his father hence today they will not be spared and at the same moment accused persons fired upon deceased Ali Gul who after sustaining injuries fell down on the ground. Accused Muhammad Bux challenged them and directed them to be keep silent and fired from the gun in the air. After making fire all the accused decamped from the place of offence. Thereafter they saw that deceased Ali Gul having firearm shots and was expired at the spot. He stated that his statement was not recorded by police but his statement under section 164, Cr.P.C. Was recorded before the Court of Mukhtiarkar and FCM Ratodero. In cross-examination he has admitted that the Police Station Ratodero is at the distance of 4 KM from the place of incident. He admitted that the police came at the place of incident after one hour. He stated that his statement under section 164, Cr.P.C.
12. Was recorded by calling him at Police Station. He admitted that deceased was husband of his sister. He admitted that deceased Ali Gul had not committed the murder of father of accused Imdad prior to the incident of this case. He admitted that in the murder case of father of accused Imdad, Ali Gul and others were challaned. He stated that they left shops of Abdul Rehman's for the purpose of taking tea and to meet the friends. The shop of Abdul Rehman's is situated 30/40 paces away from the place of incident. He denied the suggestion that he has given false evidence. He has also denied the suggestion that due to enmity accused/appellant Imdad is implicated in the case.
13. P.W.6 Muhammad Azam is mashir of recovery of K.K. From appellant accused Imdad. In cross- examination he admitted that he has relationship with deceased and other witnesses, P.W.7 Mukhtiarkar Sirajuddin stated that on 24-2-2001 he was posted as Mukhtiarkar Ratodero where S.H.O. Produced witnesses Abdul Aleem, Abdul Rasheed and Abdul Hakeem for recording their 164, Cr.P.C. Statements, which he recorded the same and read over contents of the statements to the witnesses and obtained their signatures. P.W.8 Abdul Wahid is mashir of inquest report and mashir of place of wardat he stated that from the place of wardat four empty bullets of pistols and ten empty bullets of K.K. And twelve empty cartridges of .12 bore were recovered and the police prepared inquest report of dead body of Ali Gul in his presence. He was cross-examined but nothing favourable achieved P.W.9 HC Nizamuddin stated that he had handed over the dead body of deceased Ali Gul after conducting post mortem report. Last witness was Inspector Abdul Nabi Rind who stated that on 13-2-2001 he was posted as S.H.O. Of Police Station Naudero. On the same day Moula Bux came at Police Station and lodged his report for the commission of murder of his brother deceased Ali Gul. He incorporated the contents in 154, Cr.P.C. Book. After registration of F.I.R.
14. He accompanied with the complainant and proceeded towards the place of incident. The place of incident was situated at Khan Wah city. He prepared mashirnama of place of incident on the spot in presence of mashirs and collected blood stained earth. He stated that he has secured ten empty bullets of SMG, three empty bullets of T.T. Pistol and twelve empty cartridges of .12 bore from the place of incident. On the next day he recorded 161. Cr.P.C. Statements of P.Ws. Abdul Rasheed, Abdul Hakeem and Abdul Aleem. On 18-2-2001 he arrested accused Imdad and on 23-2-2001 accused Imdad was volunteered to produce K.K. Used in the commission of offence. Hence he took the mashirs Muhammad Azam and Abdul Basit and accused Imdad produced K.K. From heap of PALAL along with magazine and two live bullets. On 24-2-2001 he got recorded statements of witnesses under section 164, Cr.P.C. Through Mukhtiarkar and FCM Ratodero. He produced Roznamcha entry.
15. He stated that he has sent cloth to Chemical Examiner and K.K. And empty bullets for ballistic report. In cross he admitted that the chemical report Exh.9(c) blood group was tested but not mentioned . He admitted that he did not check the blood group of the deceased at the time of post mortem report. He was cross-examined at length but no favourable to accused came from evidence of this witness.
16. Mr. Aftab Ahmed Gorar learned counsel for the appellant has argued that the prosecution witnesses have exaggerated their version at the trial. He further contended that the prosecution witnesses evidence is pregnant with doubts and material contradictions and discrepancies are available in the evidence of prosecution witnesses. He further argued that prosecution witnesses are interested related and they have inimical terms with the accused party. He further argued that the medical evidence is conflicting with the ocular evidence and circumstantial evidence also lacking independent corroboration. He lastly contended that the prosecution has miserably failed to establish guilt of the appellant from any shadow of doubt. He argued that prosecution case is pregnant with doubts and defence has succeeded to create doubts in the prosecution case and in these circumstances, the benefit of doubt may be extended in favour of appellant.
17. On the other hand Mr. Naimtullah Bhurgari learned State Counsel has argued that the prosecution had produced trustworthy and confidence inspiring evidence. The occurrence has taken place in front of Otaq of accused Imdad and the accused had failed to deny the place of incident. The appellant has not denied the fact that the place of incident is not in front of his Otaq. He further argued that the incident has taken place at day-light and F.I.R. Was lodged promptly by the complainant. He further contended that the enmity is double sword weapon and it has come in evidence that the complainant along with deceased was facing trial of murder case of father of appellant Imdad. All the above factors support the prosecution case. He further argued that merely relationship with the . Deceased, evidence of related witnesses cannot be discarded from sole ground of relationship. He lastly contended that the prosecution has established case beyond any shadow of doubt and the trial Court has already taken a lenient view by awarding lesser punishment of life imprisonment. He further argued that due to overwhelming evidence the trial Court has to award capital punishment to appellant as there was no mitigating circumstances for awarding lesser punishment of life imprisonment.
18. We have considered the submissions advanced at the bar and scanned the entire evidence with the assistance of learned counsel for the respective parties. The ocular evidence is consisting upon the evidence of complainant Moula Bux P.W. Abdul Rasheed and P.W. Abdul Aleem, lengthy cross- examination was conducted by the defence but the defence was not able to rebut/shetter the evidence of the eye-witnesses who are unanimous and categorically stated in their evidence that accused Imdad along with other co-accused came out from his Otaq duly armed with K.K. And challenged the witnesses that he had to take revenge of murder of his father, it clearly indicates that appellant Imdad had motive to commit murder of deceased Ali Gul and to take revenge of murder of his father. Learned counsel for the appellant has not pointed out any material contradiction and discrepancies in the evidence of the witnesses. We have appraised and evaluated the ocular evidence and so also medical evidence and circumstantial evidence and found that the prosecution evidence is trustworthy inspiring-confidence and the witnesses having no material to falsely implicate the appellant in such a heinous offence of capital punishment. The witnesses are also related to the appellant as appellant is brother-in-law of one of the prosecution witness. We are of the considered view that the ocular evidence is trustworthy and confidence- inspiring and there is no motive to falsely implicate the appellant in the commission of offence.
19. Furthermore the evidence of witnesses is in conformity with the medical evidence and with the recovery of empty bullets of Kalashnikov and empty bullets and empty cartridges from the place of wardat. After careful consideration we are of the view that the prosecutions has established its case beyond any shadow of doubt against the appellant. We see no merits in the above appeal.
20. Consequently we maintain the judgment and punishments awarded by the Court below hence the .