' SADIQ HUSSAIN BHATTI, J.--The appellant/accused Yakoob son of Sarang Bhacho resident of Laki Shah Saddar Taluka Manjhand District Jamshoro, was tried by learned Additional Sessions Judge, Sehwan, under section 302/34, P.P.C. For having committed the murder of deceased Muhammad Ayoub alias Saleem and having been found guilty was convicted and sentenced to undergo imprisonment for life and to pay fine of Rs,100,000 (One lac) or in default of fine to undergo S.I. For two years more. The fine if recovered, the same shall be paid to the legal heirs of deceased Muhammad Ayoub alias Saleem as compensation as provided under section 544-A, Cr.P.C.
2. Being aggrieved and dissatisfied by the above order/judgment dated 27-11-2010, the appellant above named filed this jail appeal being Criminal Appeal No,S-449 of 2010.
3. The facts of the prosecution case, briefly stated, are as follows:-- "On 26-6-2007 at about 1520 hours, complainant Shah Nawaz son of Ahmed Bhacho lodged F.I.R.
No,3 of 2007, for offences under section 302 QDO/114, P.P.C. At Police Station Thebath, stating therein that they demanded the hand of the daughter of Gul Hassan for his brother Muhammad Ayoub alias Saleem, on which their uncle Yakoob was annoyed that he has demanded the hand of daughter of Gul Hassan for the son of his cousin namely Qurban and he restrained them from taking the hand of the daughter of Gul Hassan, but [Vol.XXXI , complainant replied him that Gul Hassan has given the hand of his daughter to them with his consent. It is further stated that on 24-5-2007, they went to Tando Adam for the marriage of his brother Muhammad Ayoub alias Saleem, where his uncle Yakoob with the help of Mithal Shah lodged false report against them and got arrested to him and his maternal cousin (Masat), but they were got released at the intervention of their Nekmards Kamal and Sodho. It is further stated that his uncle issued them threats of dire consequences. It is further stated that they returned to their village and their uncle was already present there. On the fateful day at 9-00 a.m., his brother Muhammad Ayoub alias Saleem came to house after taking bath from river, in the meantime his uncle Yakoob along with Mithal Shah also came there and Mithal Shah while standing at the door instigated to his uncle Yakoob. It is further stated that at the instigation of Mithal Shah, his uncle Yakoob went inside the room and took his licensed gun and made straight fire at his brother Ayoub alias Saleem which hit him on his chest and he made another fire which hit on his right thigh and he fell down. Thereafter, the accused made his escape good along with weapon and Mithal Shah also went away. It is further stated that his cousin Abid has also witnessed the incident. The cries attracted his uncle Allah Obhayo and thereafter they took injured Salem in a Datsun to Taluka Hospital, Sehwan, but he died on the way. It is further stated that police also arrived at hospital and after formalities and postmortem the dead body was handed over to them, which they brought at their village and after its burial, complainant appeared at Police Station and lodged the instant F.I.R."
4. Police after registering the above F.I.R. At the behest of complainant Shah Nawaz Bhacho, took up the investigation of this case, arrested accused on 28-6-2007 and after usual investigation, submitted charge sheet against accused Yakoob son of Sarang Bhacho for offence under section 302, P.P.C, while let off co-accused Mithal Shah alias Qalandar Bux under section 169, Cr.P.C. And placed his name in Column No,2 of the charge sheet.
5. Complainant Shah Nawaz Bhacho filed an application under section 193, Cr.P.C. For joining the accused who was let off under section 169, Cr.P.C. And placing his name in Column No,2 of the charge sheet. Then trial Court after hearing the respective parties, allowed this application vide order dated 1-7-2009.
6. The operation of the above order was suspended by this Court vide order dated 24-7-2009 passed in Criminal Revision Application No,S-83 of 2009.
7. Before the commencement of the trial against the present appellant/accused, the relevant documents as required under section 265-C, Cr.P.C. Were supplied to him on execution of receipt Ex.1. Charge Ex.2 was framed against the accused for alleged offence under section 302/34, P.P.C.
Accused pleaded not guilty and claimed to be tried vide plea Exh.3.
8. The prosecution in order to substantiate the charge against the accused examined following prosecution witnesses:- ' P.W.1. Shah Nawaz Bhacho at Exh.4, complainant of the case, produced F.I.R. No,3 of 2007 as Exh.4/A and pointed out the place of incident to police.
' P.W.2. Abid Ali at Exh.5, eye-witness of the incident.
' P.W.3. Hashim (mashir) at Exh.7, produced mashirnama of inspection of dead body Exh.7/A, inquest report Exh.7/B, place of wardat Exh.7/C, memo of blood-stained clothes of deceased, Exh.7/D and memo of recovery of crime weapon Exh.7/F.
' P.W.4. Liaquat Ali Kumbhar I.O. Exh.8, he produced receipt of handing over the dead body Exh.8/A, attested photo stat copy of the roznaincha entry Exh.8/B, Chemical Examiner's report Exh.8/C, Ballistic Expert's report Exh.8/D.
' P.W.5. SIP Haji Muhammad Saleem Qureshi at Exh.9.
' P.W.6. Dr. Muslim Lakhair at Exh.10, he produced police request letter Exh.10/A, postmortem examination report Exh.10/B, receipt of handing over the dead body to heirs Exh.10/C. Thereafter, prosecution closed its side at Exh.11
9. Accused got recorded his statement under section 342, Cr.P.C. Vide Exh.12, in which he pleaded innocence and denied the prosecution allegations and stated that the case is managed one. Case property is foisted upon him. The Ballistic expert's report is false and fabricated and same is prepared after considerable delay. P. Ws. Are inter related and interested and they have deposed against him to save the skin of true culprit complainant Shah Nawaz. The accused also denied the motive of the case. The accused neither examined himself on Oath nor examined any D.W.
10. I have heard the learned counsel for the appellant/accused, learned counsel for the complainant, learned D.P.-G. For the State and also perused the entire record with their assistance.
11. Learned counsel for the appellant raised the following contentions:--
(i) The judgment is against the law and facts.
(ii) The trial Court has not properly appreciated the law in its true perspective.
(iii) The P.Ws. Are closely related to each other and deceased. No other inmate of the house has deposed against the accused, as they are not shown as P.Ws.
(iv) The witnesses are not residing in the house where incident has taken place but residing at far off places.
(v) There is delay in dispatching the clothes of the deceased to Chemical Examiner and also delay in sending the gun to the Ballistic Expert for examination and analysis.
(vi) That since the alleged incident is un witnessed hence there are no natural witnesses.
(vii) The complainant and accused are on inimical terms well before the incident.
(viii) That the case is false one as result of previous enmity hence full doze given by the trial Court is unwarranted by law. It is therefore, prayed that above order/judgment be set aside and appellant/accused be set at liberty. In support of his contentions, learned counsel has placed reliance on the case of Gamoon and others v. The State, reported in 2011 PCr.LJ 1801.
12. On other the hand, learned counsel for the complainant strongly opposed the contentions raised by learned counsel for the appellant/ accused and contended that appellant has committed a heinous offence of murder which carries capital punishment; the witnesses have fully supported the case of prosecution which also corroborated the medical evidence, there is also recovery of crime weapon against the accused and the case has been proved against the appellant/accused beyond any shadow of doubt. Hence he prayed that conviction awarded by the trial Court may be maintained.
13. The learned D.P.G. For the State has also vehemently opposed the contentions raised by learned defence counsel and further submitted that the prosecution has adduced sufficient evidence and thus have fully brought home the guilt of the accused/appellant.
14. Having heard the arguments of learned counsel for the parties and have given due consideration to the record produced during the trial proceedings.
15.The death of deceased Muhammad Ayoob alias Saleem is proved through the evidence of Dr. Muslim Lakhair Exh.10, who performed the postmortem of deceased and issued such report Exh.10/B, mentioning therein that the death of deceased had occurred as a result of firearm injuries, injury No,2 was sufficient to cause death in ordinary course of nature.
16.During the cross-examination, M.L.O. Denied the suggestion that Shalwar of deceased was not stained with mud or earth but it was stained with blood. After postmortem examination of the deceased, the dead body was handed over to H.C. Muhammad Ibrahim and such receipt was obtained and he produced the same as Exh.10/C. The above evidence leaves no doubt that deceased Muhammad Ayoob alias Saleem died un-natural death as result of firearm injuries.
17.Now coming to the eye-witness account, same is furnished by complainant Shah Nawaz Bhacho and P.W. Abid Ali Bacho, they have fully supported the incident and their testimony is in conformity with each other. Before coming to the incident, it has emerged through their evidence that all the witnesses and accused Yakoob are very closely related to each other. So much so that all are residing like a family and residing in one and same house, under a common roof. This unfortunate incident has happened as the complainant party had demanded the hand of the daughter of Faqir Gul Hassan (husband of the sister of complainant) for his brother deceased Ayoob alias Saleem, they accepted the demand and due to this acceptance, accused Yakoob uncle of complainant became highly annoyed with complainant party and extended them threats of dire consequences. Complainant party tried to explain him that Faqir Gul Hassan has given the hand of the girl to them by his free will and they shall take the hand of girl as agreed by her parents. The complainant has further deposed that on 24-6-2007, they had gone to Tando Adam where Gul Hassan used to reside with his family, to perform the Nikah of his brother Ayoob alias Saleem, where his uncle accused Yakoob and Mithal Shah got him and P.W Abid arrested but with the assistance of their Nekmards Kamal and Sodho, they were released. After Nikah when they returned to their village, his uncle Yakoob issued them threats that he will teach them lesson. On 26-6-2007 at 9-00 a.m., his brother Ayoub alias Saleem had gone to take bath in nearby river and after taking bath when he returned back at that time, Yakoob along with Mithal Shah came. Mithal Shah was standing at entrance door, he shouted at Yakoob and instigated him to kill deceased Ayoob alias Saleem, on such shout uncle Yakoob went inside his room, came out with his licensed gun and fired straight shots at deceased which struck him and he fell down. Both accused named above fled away from the scene of vardat along with crime weapon. Complainant party shifted the injured to Taluka Hospital, Sehwan where he succumbed to the injuries and expired. Police came at the Hospital. After funeral of the deceased, complainant lodged the F.I.R. Which he produced as Exh.4/A.
18. The motive of the incident was that accused uncle Yaqoob was highly annoyed as before he had demanded the hand of said girl from Gul Hassan for his cousin which was refused.
19. P.W.2 Abid Ali has also fully supported the above version and corroborated his testimony on major issues pertaining to this incident. Both the P.Ws. Stood firm to the long and lengthy cross- examination which could not shake their credibility.
20. As I have discussed the medical evidence in my earlier Paras. The medical evidence has fully supported the ocular testimony, leaving no gap.
21. The evidence of mashir has further strengthened the case of prosecution. Mashir Hashim has deposed that he acted as mashir of inspection of dead body lying in Taluka Hospital, Sehwan and produced tame as Exh.7/A, inquest report as Exh.7/B, memo of inspection of place of vardat as Exh.7/C, the place of vardat was shown by complainant which was situated in the house of complainant from where police secured blood stained earth and two empty cartridges. Police secured the same and sealed them separately and prepared such mashirnama. Police secured the blood stained clothes of the deceased and sealed the same. Such memo was also prepared which is produced as Exh.7/D.
22. On 28-6-2007, Police arrested accused Yakoob Bhacho on 4-00 p.m. From Bhacho Bus stand in presence of mashirs and prepared such memo which is produced as Exh.7/D. After due interrogation accused Yakoob Bhacho voluntarily led the police party and mshir to the seepage drain on eastern side of their village Lakhi Sodhar and after digging the bank of the drain, produced one D.B.B.L. Gun and its license wraped in plastic. The crime weapon D.B.B.L. Gun was checked and fresh smoke of gun powder was coming from its barrel. The gun was sealed at the spot and such memo of recovery was prepared at the spot in presence of the mashirs which is produced as Exh.7/F.
23. The blood stained clothes and blood stained earth were sent to the Chemical Examiner duly sealed and its reports is produced as Exh.8/C. The same is positive. The D.B.B.L gun and two empty cartridges were also sent to Ballistic Expert for his expert opinion duly sealed. The report is produced as Exh.8/D, the same is also positive.
24. I have considered the arguments advanced at bar. The thrust of their arguments is that the witnesses are related inter se, hence highly interested except the related P.Ws., no other P.W. Has been examined to corroborate their testimony.
25. P.Ws, accused, and deceased are so closely related having blood relationship, living in one and same house. Why their testimony should, be discarded, on the contrary they are the natural witnesses. It is well established and settled law that the Court while assessing the evidence, must keep in mind that the evidence of single truthful witness is sufficient to warrant conviction. The view expressed by honourable Supreme Court in a case of Muhammad Riaz, reported in 2004 SCMR at Page 897 is as under:- "eye-witnesses being inmates of the house are direct and natural witnesses of the occurrence who had narrated the occurrence in detail on each material point without any describable contradiction. Medical evidence, motive and abscondence of accused after the occurrence had corroborated the ocular evidence. Finding of guilt of the accused arrived at by the Trial Court and maintained by the High Court did not call for any interference by the Supreme Court. Leave to appeal was refused to accused accordingly."
26. Prosecution is at liberty to examine which witness and to give up which witness, they cannot be compelled or any adverse opinion be taken.
27. Since the wave of terrorism is spread, hence people even from neighborhood close their doors as safety measures. Now a days, the things are so drastically changed that by-standers watching the incident as mere spectators without mustering courage to interfere.
28. The case-law submitted by defence counsel has no bearing on the facts and circumstances of the present case.
29. The version put forth by accused that in fact complainant was having affair with Mst. Shahida and as gifted lover, killed the deceased. The above version do not appeal to a prudent mind. Since all the relatives went to Tando Adam for the purpose of performing Nikah of deceased, further that accused through hanky panky with the help of police, got the complainant arrested having said so, in my opinion the above revision is false and not worth considering.
30. No person with common prudence shall entangle with real uncle in a serious case where single accused is nominated in the F.I.R. And leaving the actual culprit. The present case is not the case of mistaken identity. It was a broad day light murder case. The witnesses have fully supported the prosecution case corroborated by medical evidence, Ballistic Expert's report, Chemical report and mashir of arrest and recovery, is sufficient evidence against the accused, leaving no room to believe the plea/version of accused.
31. For the reasons given hereinabove, this Criminal Jail Appeal having no merits is hereby dismissed.