' GHULAM SARWAR KORAI J.---These two appeals are directed against the Judgment dated 23-12- 2010 passed by the Court of learned IIIrd Addl. Sessions Judge Dadu in Sessions Case No.165 of 2007 Re-The State v. Shahnawaz and others, whereby the appellant Dodo Khan in Criminal Appeal No.340 of 2011 was convicted for an offence punishable under section 302(b), P.P.C. And sentenced to suffer R.1 for life and pay compensation of Rs.50,000 to the heirs of the deceased. In case of default in payment of compensation he was to suffer S.I for three months more. He was also convicted under section 324 and sentenced to suffer R.I for five years and pay fine of Rs.10,000 and in default of payment of fine, was to suffer S.I for one month more. All the sentences were ordered to run concurrently while the respondents Nos.1 and 2 in. Criminal Acquittal Appeal were acquitted.
2. Facts of the case are that on 6-4-2007 complainant Madad Ali lodged F.I.R./report at Police Station Johi, stating therein that on the same day at about 7-20 a.m., he along with Nazar Ali, Rajab Ali Qalandar Bux and Sultan on their motorcycle went to attend the invitation of "Khairat" of Bachal Khan Gopang. After attending "Khairat", all were returning back, and when they reached near the Otaque of Dodo Khan Gopang on the link road, they saw Dodo Khan, the present appellant, his brother Shahnawaz and his son Khurram, the latter two being armed with official Kalashnikovs.
Appellant Dodo Khan took official Kalashnikov, from his brother Shahnawaz, abused the complainant party by saying that they had filed a false application against him, and had damaged his reputation, therefore they would not be spared. Sultan fearfully accelerated his motorcycle in order to get away but appellant Dodo Khan fired from his Kalashnikov on him with intention to commit murder, and hit both Qalandar Bux and Sultan. Both sustained injuries and fell down. Accused Khurram fired from his official Kalashnikov upon the complainant party with intention to commit their murder but his firing did not hit any person. The complainant party took shelter on the eastern side of the road and all accused went to their Otaq while abusing the complainant party. The complainant found that his brother Qalandar Bux had sustained fire injury on his back and Sultan also had received an injury on muscle of his left arm. Rajab Ali having seen their injuries was so shocked that he fell down and died on the spot due to the shock. The dead body of Rajab Ali and the injured were shifted to Civil Hospital Dadu, where Qalandar Bux died.
Complainant, leaving the dead bodies at Civil Hospital Dadu, went to Police Johi and lodged the F.I.R.
3. During investigation, Shahnawaz was arrested. Challan was filed against Shahnawaz and Khuram while present appellant Dodo Khan was let off by the police. Such report was filed but the learned Magistrate did not agree with the report and took cognizance and joined the appellant Dodo Khan in the case vide order dated 24-4-2007. During proceedings copies were supplied and formal charge was framed, in which the accused pleaded not guilty and their pleas were- recorded.
4. The prosecution in order to prove its case examined eleven witnesses namely P.W.1 Dr. Satash as Exh.No.7, who produced attested photostat copy of the Post Mortem Report of the deceased Qalandar Bux as Exh.7-A, Police Letter as Exh.7-B, Receipt for handing over the dead body as Exh.7- C, P.W.2 Dr. Niaz Ahmed at Ex-8, who produced Police Letter as Exh.8-A, Report of Laboratory as Exh.8-B, attested Photostat copy of the provisional post mortem report as Exh.8-C, attested photocopy of Post mortem report of deceased Rajab Ali as Exh.8-D, P.W.3 complainant Madad Ali as Exh.-9, who produced F.I.R. As Exh.9-A, P.W.4, injured Sultan as Exh.10, P. W.5 Nazar Ali was given up vide statement as Exh.11, P.W Mehrab Ali as Ex-12, who produced attested copy of Mashirnama of the dead bodies as Exh.12-A, Inquest Reports Exh.12-B & C, receipt of receiving dead body of deceased Qalandar Bux as Exh.12-D, Memo of last worn clothes as Exh.12-E, Memo of place of incident and recovery as Exh.12-F, attested copy of memo of arrest of accused Shahnawaz as Exh.12-G, P.W.6, Manzoor Ali, second Mashir as Exh.13, P-W.7 Mohammad Ashfaq as Exh.14, who produced Police Letter and attested Photostat copy of Medical Certificate of 'injured Sultan as Exh.14-A & B, P.W.8 A.S.-I. Ameer Ali, author of the F.I.R. At Exh.15, P.W.9 Tapedar Irfan Ahmed as Exh.16, who produced copy of sketch as Exh.16-A, P.W.10 P.C. Mohammad Ismail, Mashir as Exh.17, who produced Mashirnama of recovery of weapon as Exh.17-A and P.W.11 S.I Bashir Ahmed Malah as Exh.18. He produced report and chemical analysis report regarding last worn clothes of the deceased Qalandar Bux and recovered property as Exh.18-A & B and then side of the prosecution was closed vide statement of DDPP as Exh.19.
5. The statements of the accused under section 342 Cr.P.C. Were recorded vide Exs.20, 21 and 22..
They denied the allegations levelled against them by taking plea that prosecution witnesses were relatives inter se, hence they had falsely deposed against them and claimed that they were innocent. The accused Shahnawaz and Asad alias Khuram did not examine themselves on oath or led evidence in their defense but appellant Dodo Khan was examined on oath vide Exh.23. He produced copy of Muster roll for the month of. April, 2007 as Exh.23A, copy of the news item published in daily Newspaper "KA WISH" dated 29-3-2006. He also examined defense witnesses namely Sikandar Ali, Abdul Aziz, Ali Sher, Mohammad Ismail and Manzoor Ali as Exh.25 to 29, respectively and then side of the defence was closed as Exh.30.
'6. From the pleadings, learned trial Court framed the following points for determination:--
(i) Whether the deceased Qalandar Bux and Rajib Ali died their, unnatural death?
(ii) Whether on 6-4-2007 at 7-20 a.m., the accused duly armed with government K.Ks in furtherance of their common intention intentionally insulted and gave provocation to the complainant party knowing it to be likely that such provocation will cause them to break the public peace, accused Dodo fired with government K.K at H.C. Sultan with intention to commit his murder and caused him fire arm injuries and did an act with such intention and under such circumstances, that, if they .By that act caused qatl, they would be guilty of Qatl-e-amd, accused Dodo also committed Qatl-e-amd of P.C. Qalandar Bux by means of fire arm injuries and due to such shock Rajib Ali also died?
(iii) What should the judgment be?
' The points 'Nos.1 and 2 were decided in affirmative. Point No.3 was decided as already noted above, i.e., that appellant Dodo Khan was convicted while accused Shahnawaz and Asad alias Khurram were acquitted.
7. We have heard Mr. Mohammad Ashraf Kazi, learned counsel .For the appellant in Criminal Appeal No.340 of 2011 and Mr. l4bal Awan, learned A.P.-G. For the State while complainant and respondents in criminal acquittal appeal called absent. Written arguments were also filed on 24-5-2013, .Which are along the same lines as was what was submitted at the hearing.
8. Learned counsel for the appellant contended that the appellant Dodo Khan was innocent. He had been implicated falsely due to previous enmity between the .Parties. One day prior to the incident, appellant Dodo Khan went to Sehwan Sharif and stayed the night in between 5/6-4-2007 at the house of his friend namely Sikandar Ali Rahpoto and on the next day he reached Dado and joined his duty in the office of Senior Superintendent of Police Dado. He also contended that in this respect five defense witnesses were examined and also the Photostat copy of Muster roll was produced in his evidence. He further contended that the appellant was let off by the police but learned Magistrate disagreed with the report and joined him in the proceedings. He further contended that the incident was unseen and the complainant had concocted a false case on the basis of his evidence and the evidence of injured Sultan Ahmed, while one of eyewitness namely Nazar Ali was given up by, the prosecution. He also contended that on the basis of same evidence Shahnawaz and Asad alias Khurram had been acquitted. The entire case of the prosecution was doubtful, and the benefit of the same had to go to the appellant. He relied on the cases of Ali Sher and others v. The State 2008 SCM R 707, Noor Alam v. The State 2003 PCr.LJ 2003 and Ayub Masih v.
The State PLD 2002 SC 1048. He further contended that the evidence of Sultan, injured witness, was not to be believed as he was very closely related to the complainant and was an interested witness in the case. He relied on the case of Haji Rab Nawaz v. Sikandar Zulqarnain and 7 others 1998 SCM R
25. He further contended that all mashirnamas had been signed by same mashirs, who are also relatives of the complainant though the incident took place at 7-20 a.m. Hence the evidence of the mashirs was not to be believed. Learned counsel relied on the case of Abdullah Khan and 5 others v. The. State 2008 M LD 535. He further contended that though the dead body of deceased Rajab Ali and injured Sultan were brought by the complainant to Civil Hospital Dadu without any letter of the police but medical certificate showed the number of the letter of police as well as number of the F.I.R. He further contended that as per evidence of the complainant the dead body and the injured were brought to Civil Hospital Dadu by about 9-00 a.m but the doctor received the dead body for post mortem at about 3-30 p.m. He referred to the evidence of Doctor Satash in this regard. He relied on the case of Mardan Ali v. Gulistan and others 1980 SCM R 889. Mr. Muhammad Ashraf Kazi also referred to the evidence of this doctor, pointing out that he had deposed that he found a single injury, consisting of entry wound from fire arm injury measuring 0.8 c.m. In diameter with black margins, 3 c.m lateral to mid line on 2nd left lumber vertebral wound of entry. Learned counsel submitted that according to medical jurisprudence blackening is to be found if a firearm like a shotgun is discharged from a distance of not more than three feet and in case the injury is from a shot fired from a revolver or pistol, it must be discharged within about two feet. However, in the present case, the distance between the appellant and injured as shown in the F.I.R. Was about 5 to 6 paces. He relied on the case of Amin Ali and another v. The State 2011 SCM R 323. He also referred the evidence of Tapedar Wan Ahmed, who prepared the sketch of place of incident. The position of appellant Dodo and accused Qalandar Bux was about 136 feet as per the sketch plan.
He further contended that '7 empties of Kalashnikov type rifle were secured from the place of incident, and this aspect of the prosecution case was not put to the appellant under section 342 Cr.P.C. For his explanation. Learned counsel submitted that this portion of the evidence could not therefore be used against him. He relied on the case of Muhammad Shah v. The State 2010 SCM R 1009.. He also relied on the case of Din Muhammad v. The Crown 1969 SCM R 777 on the plea of alibi.
Learned counsel relied on the case of Muhammad Hanif and others v. The State 1994 PCr.LJ 1503.
Lastly, he contended that the prosecution had failed to establish its case against the appellant beyond reasonable doubt and prayed that the appellant be acquitted.
9. Learned A.P.-G. For the State opposed the appeal. He submitted that the time of incident was 7- 20 a.m. The incident was seen by the complainant and injured witness. They had supported the case of the prosecution in their respective evidence and also, succeeded in establishing the motive for the crime. The statements of the defence witnesses were recorded on 20-4-2007, with a delay of. 14 days without any explanation, and hence could not be believed. He prayed that the appeal be dismissed, He relied on the cases of Shamsul Islam v. The State 2006 SCM R 1778 and Qasim Ali v..
The State 2007 SCM R 1285.
10. We have seen the evidence and perused the record.
11. P. W.4 Sultan is one of the eyewitnesses. He deposed that on 6-4-2007 he and Qalandar Bux were on one motorcycle driven by him and Madad Ali, Nazar Ali and Rajib Ali were on another motorcycle driven by Madal Ali. They went to attend the khairat in Qasim Gopang village. When they were returning on their motorcycles and reached at link road near otaque of Dodo Gopang at 7-20 a.m., they saw towards west from the link road accused Dodo Gopang (present appellant) empty handed, Shahnawaz with service/official K.K, and Khurram was also with official K.K. P.W Sultan tried to cross the accused party on link road, but present appellant took the K.K. From his brother Shahnawaz and after abusing the complainant party stated that his reputation had been damaged by making false complaints and applications. Being fearful, this witness accelerated his motorcycle to save himself, but the appellant directly fired on him, which hit his left arm. Qalandar Bux also sustained injury on his back. They fell down from their motorcycle., Accused Khurram also fired from K.K at Madad Ali and others with intention to commit their murder. Madad Ali stopped his motorcycle at eastern side of the link, and took shelter near the road and raised hue and cry. The accused persons abused them and went towards their Otaq. Present witness and Qalandar Bakhsh were injured. Rajib Ali seeing them in injured condition expired there and then out of shock. Both the injured and the dead body of Rajib were shifted to Dado Civil Hospital where Qalandar Bux died.
Madad Ali leaving both dead bodies in the hospital went to Police Station Johi, and lodged the F.I.R.
He further deposed that his statement under section 161 Cr.P.C. Was recorded and the injuries were noted by the police when he was in the hospital. He was cross examined but there is no material contradiction in his cross examination.
12. Complainant Madad All deposed that the incident took place on 6-4-2007 at about 7-20 a.m.
On that date he was invited to attend the khairat in village Bachal Gopang. Therefore, he along with Nazar All and Rajib Ali went there on one motorcycle while Qalandar Bux and Sultan were on their motorcycle. After attending the Khairat while they were coming back on their motorcycles and reached at the otaque of appellant, he saw the appellant empty handed and -Shahnawaz and Khuram armed with K.K. Sultan tried to cross the accused party on his motorcycle, whereupon the appellant took the K.K. From his brother Shahnawaz and abused Sultan by saying that Sultan had made false complaint against him.. Therefore, they would not be spared. Sultan accelerated his motorcycle, but appellant directly fire from the K.K., which hit Sultan on his left arm and Qalandar Bux on his back. Both injured fell down from their motorcycle. Accused Khuram also fired from his K.K on the complainant. The complainant stopped his motorcycle and saved himself. All accused with their weapons went towards their otaq. Complainant party saw Sultan and Qalandar Bux in injured condition, and Rajib Ali seeing them fell down and died on the spot due to shock. Injured Sultan and Qalandar Bux were brought to Civil Hospital Dadu in a van for their immediate treatment, ,but Qalandar Bux succumbed to the injuries and expired. The complainant went to Police Station .Johi and lodged the F.I.R. The complainant was cross-examined but there is no material contradiction in his evidence. The third eye-witness was Nazar Ali. He was given up by the prospection.
13. The post mortem of deceased Rajab Ali was conducted by Dr. Niaz Ahmed, witness No.2. His evidence was recorded on 8th October, 2009. Since Rajab Ali died after having seen Qalandar Bux and Sultan as injured due to shock, therefore Dr. Niaz Ahmed opined that the death had occurred due to vasovagal shot.
14. Dr. Satash conducted post mortem of Qalandar Bux. His evidence was also recorded on 8th October, 2009. He deposed that he started post mortem of Qalandar Bux on 6-4-2007 at about 3- 30 p.m. And completed it by about 4-30 p.m. From the external examination of the dead body, he found a fire arm injury measuring 0.8 cm in diameter with black margins, 3 cm lateral to mid line on 2nd left lumber vertebral level (wound of entry). He also noted a second injury measuring 3 cm x 2.5 cm at 8th left intercostals space, 4 cm, lateral to sternum with protrusion of peritoneum (wound of exit). Food particles were present in the abdomen. From the internal examination he found lung pericardim ruptured, heart perforated, left lung was damaged and pleural space contained reddish brown fluid. Left kidney was damaged, stomach was perforated, abdominal cavity contained food and reddish brown fluid. The remaining organs were found healthy. From external and internal examination of the body of the deceased, the doctor was of the view that death occurred duel to haemorrhage and shock. 'The second injury was on vital part of the chest, including lungs. The injuries were caused from discharge of a firearm. Probable time between injuries and death was immediate, and the probable time between death and the post mortem was about 6 to 8 hours.
15. The evidence of Dr. Muhammad Ashfaq, the medical officer of Civil Hospital Dadu, was recorded on 29-1-2010. He deposed that 6-4-2007, he examined injured Sultan. He found one injury.
Measuring 3.00 c.m. x 3 c.m, into muscle deep on posterior aspect left upper arm. This injury was declared as Ghayr Jaifah Mutalimah under section 337-F(iii), P.P.C. The time in between the injury and examination as about one hour. As per his opinion, the injury was caused from the distance of 8 to 10 feet and was a firearm injury. Evidence of Mehrab Ali one of the mashir was that the dead body, inquest report of deceased Rajab Ali and Qalandar Bux and secured clothes of deceased Qalandar Bux, mashirnama of inspection of place of incident and arrest of accused Shahnawaz was signed by him as well as by co-mashir Manzoor. All these documents were exhibited in his evidence. He was cross-examined but there is no material contradiction in his evidence.
16. The evidence of second Mashir of Manzoor was recorded on 21-1-2010. His evidence is also on the same line as of P.W. Mehrab Ali.
17. The evidence of Irfan Ahmed, Tapedar was recorded on 5-5-2010. The place of incident was seen by him on the directions of the trial Court on 17-2-2010 on the pointation of Nazar 'Muhammad and Sultan. He prepared map and same was exhibited in his evidence.
18. P.C. Muhammad Ismail's evidence was recorded on 5-8-2010. He deposed that on 12-4-2007 he was posted at Police Station Johi in investigation branch. Accused Shahnawaz, who was already in custody was interrogated by S.I. Bashir Ahmed Malah. During interrogation he voluntarily led the police party to Noor Shah Graveyard and produced K.K. Loaded with three bullets from bushes.
Such mashirnama was prepared and present witness is one of the mashir.
19. The evidence of S.I Bashir Ahmed, being the last prosecution witness, was recorded on 5-11- 2010.He deposed that on 6-4-2007 he was posted at Police Station Johi and received F.I.R. No.26 of 2007, offence punishable under sections 302, 324, 504, 34 P.P.C. For investigation. After making Entry No.5 in the Roznamcha, he along with his sub-ordinate proceeded to Civil Hospital Dadu, met with the complainant, inquired about the incident and saw the dead bodies of the deceased Qalandar Bux and Rajab Ali in presence of Mashirs Mehrab and Manzoor, prepared Danistnama of the dead bodies, mashirnamas of securing clothes of deceased Qalandar Bux and got the same signed by the mashirs. The place of incident was also inspected by him. Such report was prepared and he got it signed by both the mashirs. He secured seven empties of the Kilashankov from the place of incident. Same were sealed. Mashirnama was prepared and also signed by the same mashirs.
During investigation he recorded the statements under section .161 of the witnesses: On 9-4-2007 he arrested accused Shahnawaz. During interrogation accused Shahnawaz led police party to graveyard Noor Shah, and produced a .222 rifle of K.K type along with magazine having three live bullets. The weapon was sealed, mashirnama was prepared and was signed by the mashirs. The secured clothes of the deceased Qalandar Bux and recovered property were sent for chemical analysis. The witness produced the report of the chemical analysis, and identified the accused in the Court as same. He further deposed that on 17-4-2007 accused after being granted pre-arrest bail by the High Court appeared before him and his statement was recorded. On 20-4-2007, he obtained attendance certifitate of the appellant from investigation branch Dadu for 6-4-2007. He further deposed that appellant Dodo produced Sikandar Rahpoto, Tauka Nazim Sehwan, Ali Sher Lashari, Taluka Naib Nazim, Sehwan, Abdul Aziz Rahpoto as defence witnesses, and he recorded their statements. After completing the investigation, the challan was filed against accused Khurram and Shahnawaz and present appellant was let off by him.
20. In his cross-examination he deposed that the distance between the Civil Hospital Dadu and Police Station Johi, is about 20 kilometers. He denied the suggestion that he reached the hospital and it was thereafter that Rajab Ali died. He admitted in his cross-examination that Rajab Ali has no visible injury on his body. He also, admitted in his cross-examination that deceased Qalandar Bux had only one injury, which was through and through. He also admitted in his cross-examination that both the mashirs were relatives of deceased Qalandar Bux. He admitted that both the deceased and injured were employees of the police department. No further question of material importance was put,, which may favour the appellant. The report of chemical examiner, report of examination of the rifle of .222 bore, 7 empties of .222 bore rifle and five .222 bore live bullets were exhibited through his evidence vide Exhs.18-A and 18-B.
21. From the perusal of the evidence of all the above witnesses, we are of the view that their evidence could not be shaken in their cross-examination. The post mortem reports of both the deceased . And medical certificate of injured Sultan also support the time of occurrence as disclosed by the complainant. In the fifth question of the statement under section 342, Cr.P.C. Of the appellant, he was asked whether he wished to say anything else but he replied only that he was innocent and had falsely been implicated by the complainant party and prayed for justice.
22. In his evidence on oath, he deposed that on 5-4-2007 at evening time he went to Sehwan Sharif for Ziarat and reached there at about 7-00 p.m and after. Ziarat he went to his friend Sikandar Rahpoto, where he stayed for the night in his Otaq, Ali Sher Lashari and Abdul Aziz Rahpoto were also with them in the Otaq of Sikandar Ali Rahpoto. On 6-4-2007, the next morning, he left Sehwan and reached the office of S.P Investigation, where he was posted, at about 8-45 a.m. LNK/Manzoor Hussain Birhmani and LNK/Muhammad Ismail Panwar were also available in the office at that time.
In their presence he was called by Gul Muhammad Chachar on telephone. In the meantime Sikandar Ali Qadri, TIO Dadu also came to the office for his G.P fund. Appellant along with Sikandar Ali went to treasury office and while he came back, came to know about the dispute between the Gopang community regarding murder of Qalandar Bux, and discovered that a complaint had lodged the F.I.R. Against him. He approached the High Court at Circuit Bench Hyderabad and was granted pre-arrest bail. On 20-4-2007 he along with defence witnesses Sikandar Rahpoto, Ali Sher Lashari and Abdul Aziz Rahpoto went to Police Station, met with SIO/I.O Bashir Ahmed Malah, who recorded their statements and on the basis of their statements he was declared innocent. He also produced photostat copy of the muster roll for the month of April, 2007 in his evidence vide Exh.23- A, and newspaper cutting from daily "Kawish" dated 29-3-2006. The appellant was also cross- examined.
23. The evidence of defence witnesses Sikandar Ali Rahpoto, Ali Sher Lashari, Mohammad Ismail Panwar, Abdul Aziz and Manzoor Hussain Birhmani were also recorded and in their evidence they supported the defence version of the appellant.
24. From the cross-examination of complainant, eye-witness Sultan and S.I Investigation Officer Bashir Ahmed, it appears that no suggestion Was put about the plea of alibi of the appellant. We have also perused the attendance certificate of the appellant Exh.23-A. On 6th April, 2007 he was first marked absent then his initials were put signifying his presence, but in our view the initials are different from his initials on other dates. We have also seen the attendance of D.W. Muhammad Ismail Panwar and Manzoor Ali Birhmani. They were marked present even on 20th April, 2007 though according to appellant both were produced before Investigation officer at Police Station Johi and their statements were recorded. If the version of the appellant on his plea of alibi was correct then all five witnesses ought to have appeared before the Investigation Officer immediately as soon as they came to know about the involvement of the appellant. However, they were produced by the appellant before I.O. On 20-4-2007 after about 14 days of the incident, which creates doubt in their evidence. The time of incident is 7-20 a.m. Motive of the incident has been proved.
25. It is settled principle of law that quality of the evidence but not quantity of the witnesses is to be seen. Looking at the evidence as a whole we are of the view that the prosecution evidence is sufficient to sustain the conviction of the appellant. The evidence of the prosecution witnesses is consistent and has not been shaken. Variations, if any, are not such as would raise reasonable doubt and in any case, are to be expected given the fact that the evidence was recorded some years after the incident. Indeed, had the evidence of the prosecution witnesses been letter perfeci, marching, as it were, in lockstep, that would have been something that would have caused concern. The robustness of the prosecution evidence, to the standard required in a criminal case has been made out. The evidence produced by the appellant in support of the plea of alibi taken is weak and of a doubtful nature, which in our view is insufficient to create reasonable doubt in what has been deposed by the prosecution witnesses. Therefore, we are of the view that the appellant has failed to make out a case for his acquittal, and his appeal is therefore hereby dismissed.
' Since there is no evidence against the respondents in Criminal Acquittal Appeal No.341 of 2001, therefore, the same is also hereby dismissed.