' RIAZAT ALI SAHAR, J.---On 30-9-2013, this Jail Appeal, filed to assail Judgment dated 29-3.2010, rendered by learned Sessions Judge, Sukkur thereby convicting the appellant Balchshan son of Moharram Ali and sentencing him to imprisonment for life on finding him guilty of offence, punishable under section 302(b), P.P.C.; was heard and dismissed by a short order dated 30-9- 2013. Details to follow now are the reasons for the said short order.
2. It was 1-7-2000 when S.H.O., Police Station, A-Section, Khairpur had lodged F.I.R. Bearing Crime No, 109 of 2000 at Police Station Kotdiji alleging that on the said day, he, accompanying his staff, was chasing the accused, involved in Crime No, 140 of 2000 and when he was near Peshawari hotel, he received information about travelling of accused in a car towards village Asadullah Rind. The Police rushed thereto as such and found three persons, two armed with pistols and third with a rifle. The said three persons, seeing Police, ran into an orchard. Footprints of the two persons were found by .
Police leading to orchard and those of third to a watercourse. Some of the officials encircled the two persons and others followed footprints of third person. In the meanwhile, encircled persons opened fire upon Police, the Police also responded to and the said episode was continued for 15 minutes and ended in death of PC Riaz Hussain Lashari, who sustained pistol shot at his shoulder.
Thereafter, one of the two persons (Bakhshan), having pistol surrendered himself whereas the other (Mohammad Usman) was found injured; a rifle was lying near him. Both of them stated to have caused injuries to Excise Police and that the rifle was one, that they had snatched from Excise officials. Name of third person was disclosed by both of them to be Dhani Bux. Muhammad Usman, in the meantime, expired.
3. Bakhshan, thus, was accused of aforesaid murder of a Police Constable and was booked in F.I.R.
No, 109 of 2000 of Police Station, Kotdiji; after supplying requisite documents whereof, charge was framed whereto he pleaded "not guilty" and was tried accordingly.
4. Prosecution chose to adduce testimony of P.W.1 Dr. Nasrullah (Medical Officer) at Exh.17, P.W.2 Inspector Liaqat Ali at Exh.7, P.W. 3 A.S.-I. Imam Bux (Mashir) at Exh.8, P.W 4 A.S.-I. Sikandar Ali (Mashir) at Exh.10, P.W 5 Tapedar Sardar Ali at Exh.12, P.W.6 Inspector Yar Muhammad Rind (Investigating Officer) at Exh.13 and P.W.7 Inspector Zamir Ahmed (scriber of F.I.R.) at Exh.16.
5. Statement of accused was then recorded under section 342, Cr.P.C. And therein he refuted what has been alleged against him. He opted to be examined on oath and his statement, thus, was recorded under section 340(2), Cr.P.C. In such statement, his stance was that three persons had asked him to lead them to Khairpur in his car, which he did but on the way, one of them had alighted and on reaching Khairpur, Excise Police had fired upon the vehicle, two persons sitting in his car had responded to, resultantly two Excise officials had died, thereafter, the said two persons had asked him to drop them out of city and then there occurred another encounter between Police and those persons, ultimately he was arrested.
6. The accused examined Waheed Ahmed and Ghous Bux as defence witnesses. Waheed has stated that he had seen three persons, sitting in car of the present accused, who then had gone towards Khairpur. Ghous Bux, however, has stated that he was owner of the car and the present accused was his driver and mother of present accused had sent brother of the accused to him to state that his car was snatched by some armed persons from the present accused.
7. I have heard counsel for the appellant as well as Assistant Prosecutor General at length.
8. The learned counsel for the appellant has contended that medical evidence comes in conflict with ocular account in that blackening was available on the person of deceased although there remains no blackening when fire is shot at a distance of 100 feet or more; injury is at back of deceased, which renders the alleged incident improbable. He submitted that there was no independent person to witness the recovery, which makes the case doubtful. He further submitted that there were contradictions in the evidence of prosecution, which strengthens the stance, suggested in the cross-examination, namely, involvement of accused at the behest of brother of SSP Niaz Khoso. He contended that defence evidence has been recorded on oath, which has to be given weight to. He, thus, concluded that the appellant was entitled to be acquitted. He relied upon Barkat Ali v. Muhammad Asif and others, 2007 SCMR 1812, Noor Ahmed and others v. The State, PLD 2005 Karachi 177 and Muhammad Akram v. The State, 2009 SCMR 230.
9. Contrarily, Assistant Prosecutor General has submitted that blackening, in view 'of observations made in Kouro and 5 others v. The State, 2013 YLR 1215, does not affect the case of prosecution. He submitted that there was no conflict between medical and ocular evidence. He further submitted that contradictions were minor in nature and were not sufficient to disbelieve evidence of the prosecution. He relied upon Anwar Shamim and another v. The State, 2010 SCMR 1791.
10. I have considered the assertions of the counsel for the parties and have minutely gone through the record as also the precedents, cited at the bar.
11. Case of the prosecution is that in an encounter, one of Police officials has been slain by the accused person, who was firing from an orchard with a Pistol and after the firing was over, one of the accused (present appellant) had surrender whereas his partner had died. This particular account has been seconded by the witnesses, which the prosecution has examined.
12. In Barkat Ali's case (supra) relied upon by the counsel for the appellant; Forensic Science Laboratory had reported that the empties did not tally with the recovered gun. No such thing has been argued to be there in the present case. The reported case, therefore, is squarely distinguishable. Noor Ahmed's case, ibid, was next relied upon. In the said case, Noor Ahmed, whose role was active in commission of murder of deceased by his fire, was found guilty because the witnesses had stated so and medical version had corroborated it. However, Khan Mohammad was accused of instigation and as to such allegation, the witnesses were inconsistent and Bago alias Yar Muhammad was alleged to have resorted to ineffective firing with his gun; however, no empty cartridge was found from the place of incident and, therefore, Khan Muhammad and Bago alias Yar Muhammad were acquitted. Present case is quite different from the case of those two accused; rather it tallies with the case of Noor Muhammad, who was convicted. Muhammad Akram's case (supra) was also relied upon by the counsel for the appellant. In that case, the statements of the witnesses were discrepant. Moreover, F.I.R. With respect to abduction was registered belatedly and there was explanation for the delay that the complainant was under threat; however, the Court noted that there was no explanation as to how the fear had vanished with the result that the complainant registered the F.I.R. After the recovery of the alleged abductee, particularly when the abduction was committed in presence of the witnesses and, therefore, benefit of doubt was elongated to the accused. This has, it is quite clear, no relevance to the case at hand.
13. It was argued that there was conflict between medical and ocular account as there was blackening on the person of deceased whereas it has been submitted that there does not remain blackening when fire is made from 100 feet or above. It is sufficient to observe that distance from which fire was made has nowhere been stated and, therefore, there was nothing for the counsel for the appellant to assume that there was conflict between medical and ocular testimony Even otherwise, in Kouro's case (supra) it w4s observed by a Division Bench of this Court as under:-- "15. Regarding the contention of defence counsel that charring marks were available around the wounds, therefore, it appears that injured received injuries from close range and it can be self- inflicted injuries, on this count, it could safely be said that blackening by smoke and unburned gun power surrounding firearm injuries would not only depend on the distance from which shot is fired but also on (1) kind and quantity .Of, gun powder (charge) used in the cartridge and (ii) length of barrel and size of barrel diameter at muzzle end."
14. The contention as regards conflict between medical and ocular accounts is, in view of aforesaid observations of the Division Bench, is misconceived.
15. As to the injury being at the back side of deceased, it may be observed that the witnesses have fully supported the case of prosecution, which is seconded by the medical evidence and, therefore, this fact can, at best, be an extenuating circumstance but not capable of rendering the case of prosecution improbable or unbelievable; more so in view of the fact when firing was being made, it was quite possible that the deceased might have turned to see his companions or to change his position et cetera.
16. Submission regarding. Witnesses being Police officials is of no importance because it has been held by the honourable Supreme Court of Pakistan that evidence of Police officials does not become invalid for mere reason of their belonging to Police Department and that they are good witnesses like others unless they are shown to be having any short of motive to falsely implicate the person, charged in the case. One may refer to Muhammad Azam v. The State, PLD 1996 SC 67, Muhammad Hanif v. The State, 2003 CMR 1237, Riaz Ahmad v. The State, 2004 SCMR 988 and Naseer Ahmad v. The State, 2004 SCMR 1361,
17. As regards defence version, it is sufficient to observe that statement of accused, recorded on oath, is not supported by any of the two witnesses, produced by him in defence. Even otherwise, that story does not appeal to reason. Statement of DW Waheed is of no help to appellant because he has merely stated to have seen the appellant going with armed persons in his car whereas DW Ghous Bux's statement is hearsay and is not admissible in evidence as such. I am, therefore, not inclined to give weight to defence version because when both the versions are put in juxtaposition, prosecution version is found to be impressive and consistent and that of defence is discrepant.
18. Regarding contradictions, it is observed that those, being minor nature, do not overcome the case of prosecution and, therefore, they are not to be given weight to because by the lapse of time, it is natural phenomenon that there occur minor contradictions in the testimony of witnesses because of being human being. Learned A.P.-G. Has rightly relied upon Anwar Shamim's case, ibid wherein it has been observed by Hon'ble Supreme Court as under: "6. It is settled principle of law that minor contradictions or improvements in the statement of witnesses are to be overlooked However, only material contradictions are to be considered. The learned counsel for the petitioners have failed to point out any material contradictions, omissions and improvements. See Ranjha v. The State (2007 SCMR 455)."
19. This Court, in view of what has been stated above, arrives at the conclusion that this appeal, being devoid of force, has to be, and was thus, dismissed by a short order dated 30-9-2013 with the result that conviction and sentence, awarded by means of the impugned Judgment, was upheld.