IMAM BUX BALOCH, J.--- Through this appeal, appellants Muhammad . Panah and Ghulam Hyder have assailed the judgment dated 6-6-2009, passed by the learned II-Additional Sessions Judge, Shikapur, in Sessions Case No,250 of 2000, State v. Muhammad Panah and others', being Crime No,9 of 2000, registered at Police Station Nabi Shah Wagan, for offences falling under sections 302, 114, 34, 148, 149, P.P.C., and 13(d), Arms Ordinance, whereby the appellants were convicted and sentenced under section 302(b), P.P.C. to suffer R.I. for life and to pay fine of Rs,50,000 each and in default of payment of fine, they shall suffer R.I. for six months more. The fine, if recovered, was directed to be paid to the legal heirs of deceased persons in terms of section 544-A, Cr.P.C.
2. Heard learned counsel for the appellants and the learned State Counsel.
3. The counsel for the appellants contended that there is enmity between the parties over landed property and there is no eye-witness of the incident. The ocular evidence is contradictory. The are so many, discrepancies in the evidence of the prosecution witnesses. He contended that complainant hlazim Hussain stated that the distance between dead bodies of deceased Mst.
Sakina and Imdad Ali is 8 to 10 paces, whereas P.W.10 Tapedar Azizullah stated that the distance between both the dead bodies is 2000 paces. He contended that P.W.4 Sher Muhammad stated that distance between the two dead bodies is 200 paces. He pointed out that complainant Nazim Hussain stated that there was seedling paddy crop, but P.W.4 Sher Muhammad denied such fact of availability of seedling paddy crop. He further contended that on the contrary P.W.4 stated that there are bushes and trees at the place of wardat. He has placed his reliance on the case of Muhammad Yaqoob v. The State reported in 2007 M LD 100, case of. Ghulam Akbar v. The State reported in 2008 SCM R 1064, case of Muhammad Akram 'v. The State reported in 2009. SCMR 230 and case of State v. Shahbaz Khan and others reported in 1994 M LD 1700 and contended that the prosecution has failed to prove its case against the appellants beyond any shadow of reasonable doubt and the defence has succeeded to create so many doubts in the prosecution case.
4. On the other hand Mr. Ali Raza Pathan, learned State Counsel, contended that the F.I.R. was lodged promptly, in which the names of the appellants with specific roles have been mentioned.
Ocular evidence is consistent, with the medical evidence. The prosecution case is also supported by circumstantial evidence and motive. He contended that from the evidence of prosecution witnesses it is evident that appellant Muhammad Panah suspecting his wife Mst. Sakina of having illicit connections with deceased Imdad Ali committed murders of both the deceased on such account. He further contended that no material contradictions or discrepancies going into the root of the prosecution case creating reasonable doubt have been pointed out by the defence the evidence of prosecution witnesses, who are otherwise consistent on every material point and their evidence is confidence-inspiring. He further contended that the prosecution witnesses are natural witnesses. The incident had taken place in the morning time, hence the presence of witnesses is natural. He contended that the trial Court has already taken lenient view, the appeal having no merits is liable to be dismissed.
5. With the assistance of learned counsel for the parties. I have scanned the entire evidence.
6. The prosecution case, as mentioned in the F.I.R lodged by complainant Muhammad, Nazim Khoso on 13-6-2000, at 3-30 p.m., at Police Station Nabi Shah Wagan, District Shikarpur, is that he owns agricultural land in Deli Gawaz, where he had sown the Seedling of paddy. About 4/5 years prior to this incident, the cattle of Muhammad Panah Khoso had trespassed in his land, and spoiled the seedling. Muhammad Panah Khoso and others, quarreled with them and issued threats to the complainant and his brother Imdad Ali, On the day of incident i,e,, 13-6-2000, complainant, his brothers Imdad Ali and Babal and cousin Dur Muhammad left their houses for their land. At about 10-00 a.m., when they reached at the sand dunes, they saw accused persons, namely, (1)
Muhammad Panah, (2) Abdul Razak, both sons of Ghulam Hussain, (3) Ghulam Hyder son of Faiz Muhammad, all armed with guns, (4) Muhammad Alam son of Abdul Rehman, armed with lathi, (5)
Noor Muhammad son of Chiman, empty handed, standing there. Noor Muhammad instigated accused Muhammad Panah to kill Imdad Ali, as lie is on illicit terms with his wife Mst. Sakina. On such instigation, accused Muhammad Pariah asked the complainant, his brother Babal and their cousin Dur Muhammad to keep at side, as Imdad Ali is his Karo. Due to fear of weapons they stood aside and within their sight Muhammad Panah, Abdul Razzak and Ghulam Hyder fired at Imdad Ali, who received injuries on his chest, leg and fell down and was found dead. Noor Muhammad thereafter asked Muhammad Panah to kill his wife and all the accused went towards the house of Muhammad Panah. Meanwhile, Mst. Sakina, the wife of Muhammad Panah, came out of her house and asked them not to kill her, as she is innocent. Accused Muhammad Panah fired from his gun at Mst. Sakina, who received gunshot injuries and fell down on the sand dune and died there. Accused ran away towards South. The complainant, his brother Babal and cousin Dur Muhammad sat over at the dead body of his brother Imdad Ali, till the arrival of his father Shafi Muhammad. The complainant thereafter, leaving his father and others over the dead body came to police station and lodged the F.I.R.
7. The charge was framed on 12-4-2002 and during trial prosecution examined complainant Nazim Hussain as P.W.1. at Exh.8, who produced F.I.R at Exh.8/A; Babul as P.W.2 at Exh.9; HC Ayaz Hussain as P.W.3 at Exh.10, who produced mashirnama of arrest and personal search of accused/appellant Ghulam klyder at Exh.10/A; S.H.O. Sher Muhammad Gopang as P.W.4 at Exh.12, he produced mashirnama of place of incident, recovery of dead bodies, empties of .12-bore cartridges at Exh.12/A, mashirnama of arrest and personal search of accused/appellant Ghulam Hyder at Exh.12/B, mashirnama of arrest, personal search and recovery of gun and cartridges from accused/appellant Muhammad Panah at Exh.12/C, Ballistic Expert report at Exh.12/D, inquest report at Exh.12/E; Dr. Asif Hussain Shah as P.W.5 at Exh.13, who produced post-mortem report of deceased Imdad Ali at Exh. 13/A, so also postmortem report of deceased Mst. Sakina at Exh.13/B; PC Ghulam Shabir as P.W.6 at Exh.15; LNC Ghulam Abbas as P.W.7 at Exh.16; SIP Noor Mustafa, I.O. of the case as P.W.8 at Exh.17, Morio as P.W.9 at Exh.20; Tapedar Azizullah as P.W.10 at Ex.23. After completion of prosecution evidence, the prosecution closed its side vide statement at Exh. 24.
8. Thereafter, the appellants were examined under section 342, Cr.P.C. During his examination under section 342, Cr.P.C., appellant Muhammad Panah produced copy of judgment dated 31-10- 2005 passed, in Criminal, Case No,48 of 2004, re: State v. Muhammad Panah, under section 13(d)
Arms Ordinance and stated that he had been acquitted in the said case. In his statement, appellant Muhammad Panah stated that he is innocent and has been falsely implicated. Appellant Ghulam Hyder also stated that he is innocent and has been falsely implicated by the complainant.
9. Complainant Nazim Hussain in his evidence deposed that on the day of incident he along with his brother deceased Imdad Ali, another brother P.W Babul and cousin Dur Muhammad, proceeded to their lands, when at about 10-00 a.m. on the way, accused Muhammad Pariah, Ghulam Hyder, Ali Sher, Muhammad Ali and Noor Muhammad intercepted them, from whom accused Muhammad Panah, Ghulam Hyder and Ali Sher were armed with guns, whereas accused Muhammad Ali was carrying lathi in his hand and Noor Muhammad was empty handed. On the instigation of Noor Muhammad, accused Muhammad Panah directly fired from his gun at his brother deceased Imdad Ali, whereas accused Ghulam Hyder and Abdul Razak also fired from their guns upon his brother deceased Imdad Ali. Thereafter, all the accused persons ran away from the place of incident. He further stated that after committing the murder of his brother. deceased Imdad. Ali, accused Muhammad Panah went to his own house and committed murder of his wife Mst. Sakina.
He, stated that three years back calves of accused Muhammad Panah had entered in their land and spoiled the seedling of their paddy and accused Muhammad Panah had extended threats of murder. He went to Police Station Nabi Shah Wagan and lodged the F.I.R.
10. In cross-examination to this witness the defence has not put any material question to falsify the evidence of the complainant, who is otherwise an eyewitness of the incident.
11.P.W Babul Khoso ,who is brother of complainant and deceased Imdad Ali, stated the same facts, as stated by the complainant. During cross-examination, no any material contradiction or discrepancy has been achieved from this witness.
12. P.W HC Ayaz Hussain is a formal witness being mashir of arrest of appellant Ghulam Hyder, which has not been denied by the defence.
13. P.'W S.H.O. Sher Muhammad Gopang registered the F.I.R and inspected the place of wardat. He stated that he recovered' three. empty cartridges of .12-bore near the dead body of deceased Imdad Ali and one empty, cartridge near the dead body of Mst. Sakina. He referred the dead bodies for postmortem and prepared the mashirnama of place of wardat and recovery of empties. He also arrested the accused/ appellant Muhammad Panah and Ghulam Hyder and recovered .12- bore SBL gun from appellant Muhammad Panah along with four live cartridges of .12-bore. He has produced Ballistic Expert report, which is in positive. He also prepared, the inquest reports of the dead bodies of both the deceased.
14. P.W. Dr. Asif Hussain Shah, who conducted autopsy of both the deceased, deposed that while conducting postmortem of deceased Imdad Ali, he found following injuries during external examination on his person:-- "Injury No,
1. Four' gunshot LIT wounds measuring 1 cm round each near each other, scattered over area of 10 cm with inverted margins and muscle; bone deep each, backside lower part right upper arm. (wounds of entries).
Injury No,2. Four gunshot LTP wounds 1 cm round each near each other scattered over area of 12 cm with averted margin and muscle, bone deep each, front side lower part right upper arm: (wounds of exit to injury No,1).
Injury No,3. Gunshot LTP wound 2-1/2 cm in round with inverted margin and with slight blackening into chest cavity deep, mid right side back chest. (wound of entry).
Injury No,4. Nine gunshot LTP wounds measuring 1 cm each near each other scattered over area of 12 cm with averted margin each, and chest cavity deep front lower part right side. chest. (wound of exit of injury No,3).
Injury No,5. Gunshot grazing type wound 4 cm into 3/4 cm into muscle ,deep outer side right buttock.
Injury No,6. Gunshot LTP wound 1 cm round with inverted margin upper outer side left lower leg into muscle deep. (wound of entry).
Injury No,7. Gunshot LTP wound 1 cm round into muscle deep with averted margin inner side upper parts left lower leg. (wound of exit to injury No,6)."
He further stated that e also conducted postmortem of deceas d Mst. Sakina and noted following injurie during external examination on her person:-- "(1) Gunshot LTP wound measuring 2 cm on round with blackening and charring with inverted margin into chest cavity deep mid of right side back chest. (wound of entry).
(2) Nine gunshot LTP wounds, measuring 1 cm round each, near each other scattered over area of 10 cm with averted margins and cavity deep each, front epigastrium. (wound of exit of injury No,1)."
15. P.Ws. 6 and 7 PC Ghulam Shabir and Ghulam Abbas, are the corpse-bearers of the dead bodies of both the deceased.
16. P.W Noor Mustafa is the mashir of recovery of gun and four live cartridges from appellant/accused Muhammad Panah. He has supported the prosecution case on - the point of recovery of gun and four live cartridges from appellant Muhammad Panah
17. P.W Morio is mashir of place- of wardat, inspection of dead bodies and recovery of empties from the place of wardat. He has also supported the prosecution case.
18. Last witness is Tapedar Azizullah, who has also confirmed the place of incident, as mentioned in the F.I.R.
19. I have gone through the prosecution evidence.' The ocular evidence is consistent. No material contradiction has been found in the evidence of complainant Nazim Hussain and P.W Babul, who are the natural eye-witnesses of the incident. Their evidence is supported by medical evidence given by Dr. Asif Hussain Shah. The medical evidence supports the ocular version as much as Mst.
Sakina has received only one injury, as deposed by complainant Nazim Hussain and P.W. Babul.
There are four entry and three exit wounds on the person of deceased lmdad Ali, whereas Mst.
Sakina is shown to have received only one entry wound and one exit wound, which is the exit wound of entry wound. There is circumstantial evidence viz., recovery of four empty cartridges from the places, where both the deceased were killed and recovery of .gun from appellant Muhammad Panah. According to Ballistic Expert report, the empties matched with the gun recovered from the possession of appellant Muhammad Panah. Admittedly, Mst. Sakina was the wife of appellant Muhammad Panah and daughter of absconding accused Noor Muhammad, but none from them registered any case against any person regarding the death of deceased Mst. Sakina, on the contrary they both chose to remain silent, which fact alone is sufficient to hold that the incident had taken place in the manner, as narrated by the complainant. A query was also put to the learned counsel for the appellants that in what compelling circumstances appellant Muhammad Panah or absconding accused Noor Muhammad did not register any case regarding the Murder of deceased Mst. Sakina, to which the learned counsel was unable to answer. I have also gone through the case-law cited by learned counsel for the appellants. With utmost respect and regards, the law relied upon by the learned counsel is of no help to the appellants in the facts and circumstances of the present case. Learned counsel pointed' out some variations in the evidence of prosecution witnesses, but those are not -so important to destroy the prosecution case.
20. The Hon'ble Supreme Court of Pakistan in the case of Mushtaq alias Shaman v. The State reported in PLD 1995 SC 46, was pleased to observe as under : - "From the above-quoted observations, it is quite clear that all variations in the evidence do not destroy the intrinsic value of the evidence of such witness. The variations which do not relate to material part of the prosecution story or the salient and important features of the case may be ignored for the reasons given in the above-quoted passage. as immaterial. I am, therefore, of the view that the variations pointed out by the learned counsel for the petitioner in the evidence of two eye-witnesses in this case, were not such which could affect the credibility of prosecution case.
21.In, the case of Ranjha v. The State reported in 2007 SCM R 455, the Hon'ble Supreme Court has recorded 'the following observations:-- "The identity of accused in the daylight occurrence was free from any doubt. The ocular testimony of quite independent witness duly, supported by the medical evidence, the recovery of empties from the spot, the post-mortem, reports of the two deceased and prompt lodging of F.I.R. without any deliberation and exaggeration as well as the attending circumstances was found truthful and confidence-inspiring, therefore, .the minor discrepancy and contradiction pointed out in the statement of witnesses being immaterial would be of no significance."
22.In the case of Amrood Khan v. The State reported in 2002 SCM R 1568, the Hon'ble Supreme Court has observed as under:-- "11. The evidence furnished by both these witnesses i,e, complainant Taj Wali and Said Qayyum without any hesitation can be stamped to, be fully reliable. However, surpassingly if they have furnished unreliable evidence then of course prosecution had left with no direct evidence for bringing home guilt against accused facing trial. In addition to it even if they have furnished partially reliable and partially reliable evidence then it would have become necessary for us to appreciate their evidence by applying the principle of sifting grain out of chaff but the evidence of both these witnesses did not suffer from any infirmity or discrepancy. But 'to be on more safe side and to further ensure safe administrationof justice corroboration can be sought from the medical evidence being conformity in its nature furnished by P.W Dr. Muhammad Riaz. He in his deposition has given details of fire-arm injuries received by all the deceased. There is no need to discuss medical evidences in detail because facts and circumstances of the case narrated hereinabove persuade us to hold that appellant and co-convict Mandoos Khan were at the spot duly armed is not disputed, therefore, a question of fact which has been accepted. to be true need not to be proved in terms of Article 18 of Qanun-e-Shahadat Order, 1984.
(22) It is settled proposition of law that prosecution must produce best kind of evidence to establish accusation against accused facing trial but simultaneously it has no obligation to produce a good number of witnesses because it has an option to produce as many as witnesses which in its consideration are sufficient to bring home guilt against the accused, following the principle of law that to establish accusation, indeed it is not the quantity but quality of the evidence, which get preference. In forming this view we are fortified with the judgments reported in Allah Bakhsh v. Shammi and others (PLD 1980 SC 225) and Sarfraz alias Sappi and 2 others v. The State (2000 SCMR 1785)."
23. Learned counsel for the appellants contended that the ocular evidence is related, interested and hostile and the evidence of such witnesses must be corroborated by independent witnesses, which is lacking in the instant case. It has already been observed by me that the ocular evidence is consistent, unimpeachable and confidence-inspiring which is corroborated by medical evidence, hence the same would be sufficient to base conviction. It is well settled proposition of law that only on the basis of relationship, the evidence, which is otherwise trustworthy and confidence-inspiring, cannot brushed aside.
24. The Hon'ble Supreme Court of Pakistan in the case of Muhammad Ehsan v, The State reported in 2006 SCM R 1857, was pleased to observe as under:-- "The fact that there is only ocular testimony of one P.W. which is unimpeachable and confidence- inspiring corroborated by medical evidence would be sufficient to base conviction. It be noted that this Court has time and again held D that the rule of corroboration is rule of abundant caution and not a mandatory rule to be applied invariably in each case rather this is settled principle that if the Court is satisfied about the truthfulness of direct evidence, the requirement of corroborative evidence would not be of much significance in that, as it may as in the present case: eye-witness account which is unimpeachable and confidence-inspiring character and is corroborated by medical evidence: It will not be out of place to mention that in case P.W.4 would not have been truthful witness she could have conveniently assigned/ attributed the said injury to anyone of the co-accused but she did not attribute or assign the said Injury No,2 to anyone of the acquitted co-accused. This Court has time and again held that even testimony of single witness if found to be reliable, confidence- inspiring and unimpeachable, same would be sufficient to base conviction. It is not necessary that in each and every case there should be more than one witness for the purpose of basing conviction considering that fact also that is not the quantity of evidence but the quality of evidence on the basis of which conviction is to be based."
25.The up-shot of the above discussion is that the prosecution, in my humble view, has proved its case against the appellants beyond any shadow of reasonable doubt. The appellants have committed murders of two innocent persons. The trial Court has already taken lenient view and has awarded lesser punishment instead of capital punishment of death sentence. For the foregoing reasons, the impugned judgment passed by the learned trial Court does not call for any interference by this Court and I see no merits in the instant appeal, which is hereby dismissed accordingly.