'ABDUL RASOOL MEMON, J.---This appeal is directed against the judgment dated 31-10-2007 passed by Sessions Judge, Jacobabad whereby appellant was convicted as under:--- "Section 302(b), P.P.C.,: Life imprisonment and fine of Rs,50,000 [fifty thousand rupees] in default imprisonment for two years and if realized, to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. "
2. Unfortunate episode leading to this appeal may be briefly stated that a case under section 302, P.P.C. Was registered against appellant/accused at Police Station, Mirpur Buriro on complaint of Shabeer Ahmed. It was reported that on 9-4-2004 at 1015 hours complainant, his brother Naeem Ahmed and puphat Mumtaz were present in hotel of his brother Naseer Ahmed, accused police constable Sabir Ali duly armed with official rifle was also present in hotel. Naseer Ahmed served tea to him, in the mean time one Shahid Ali, Hawker of daily "Khabroon" newspaper, came in the hotel.
When Naseer Ahmed demanded money of tea from Sabir Ali, on which he was annoyed and exchanged hot words with him and then fired with his Government rifle upon Naseer Ahmed, which hit him resultantly he fell down and died instantaneously. A bullet also hit to Shahid Ali, F.I.R. Of the incident was recorded by duty officer A.S.I. Ahmed Yar Bajkani. On the same date, A.S.I. Ghulam Sarwar Sarki of investigation branch received copy of the F.I.R. And took up the investigation. He on the pointation of complainant inspected the place of occurrence, noted injuries of deceased and recovered three empty projectiles/empty bullets and prepared such memo so also inquest report in presence of Mukhtiar Ali and Nadeem. He also noted injuries of P.W. Shahid Ali, referred the dead body of deceased Naseer Ahmed to Rural Health Centre, Mirpur Buriro. On the same date at 1200 hours he arrested accused Sabir Ali along with official G-III, Rifle with five bullets vide memo of arrest and recovery (Exh.20). He had also collected blood-stained earth from the place of Wardat.
He recorded statements under section 161, Cr.P.C. Of the witnesses named in the F.I.R. And got prepared sketch of place of occurrence from tapedar concerned. The recovered property was also sent to Chemical Examiner and Ballistic Expert for examination and report. After completion of investigation case was challaned against the appellant/accused.
3. At the trial, appellant/accused pleaded 'not guilty' to the charge, while prosecution examined first informant Shabeer Ahmed (P.W.1), Naeem Ahmed (P.W.2), Dr. Akhtar Hussain (P.W.3), Tapedar Saeed Khan (P.W.4), Mumtaz Ali (P.W.5), Mashir Mukhtiar Ahmed (P.W.6), Ahmed Yar (P.W.7), A.S.I.
Ghulam Sarwar/I.O. (P.W.8) and injured Shahid Ali (P.W.9), thereafter closed the side vide statement at Exh.27.
3. In his statement under section 342, Cr.P.C. Appellant denied all the allegations against him. He did not step into witness-box and though he gave two names of defence witnesses but later on declined to examine them. On assessment of evidence, learned trial Court found the appellant guilty of the charge and convicted/ sentenced him, as stated above. However, he was acquitted on the charge of causing injuries to P.W. Shahid Ali.
4. At the hearing, I have had the privilege of hearing the arguments advanced by the learned counsel for the appellant/accused and learned State counsel and with their assistance have gone through the evidence so far brought on record. The evidence against the appellant/accused consists of ocular evidence, medical evidence confirming and corroborating the unnatural death of death of deceased, as a result of fire-arm injuries and recovery of crime weapon from appellant matched with empty bullets recovered from the place of wardat.
5. With regard to the ocular evidence, learned counsel for the appellant has argued that all the three alleged eye-witnesses are closely related to the deceased; that occurrence took place in a hotel where admittedly other people were also present but no independent witnesses was cited by the prosecution; that even witnesses of recovery and seizure process were not associated from amongst respectables of locality as required under the law and loosely related to the deceased and complainant were asked to join proceedings. He has further contended that the motive was not proved and was shrouded in the mystery. He emphasized that the occurrence was not premeditated and the trial Court disbelieved the ocular version to the extent of causing injuries to P.W. Shahid Ali, thus reliance on same for recording conviction under section 302, P.P.C. Was not legally correct. He has further submitted that the prosecution story being highly doubtful is not safe to be believed and appellant is entitled to benefit of doubt, therefore by accepting appeal, he may be acquitted of the charge.
6. On the other hand, it is argued that the occurrence took place during broad-daylight; identification of the accused is not in doubt, who is nominated in promptly lodged F.I.R.; that the names of the prosecution witnesses are also given therein; that the time and place of incident is not disputed. Learned State counsel has further submitted that prosecution successfully proved this case against the appellant/accused.
8. It have carefully considered the impugned judgment in the light of the evidence on record.
9. I appears that occurrence in this case had taken place on 9-4-2004 at 1015 hours while the matter was reported to the police by (P.W.1) Shabeer Ahmed, brother of deceased, at Police Station which was at the distance of 8/9 kilometers, at 11-00 a.m. The name of appellant/accused, the role he played, weapon used for the commission of the offence, origin of fight, manner of the occurrence and the names of eye-witnesses, were mentioned in the F.I.R. Three empties of G-III Rifle were recovered from the spot vide memo of Exh.17. On the same day appellant/accused was arrested along with G-III Rifle allegedly used in the commission of the offence. After having gone through the entire evidence in depth, I am of the considered view that the prosecution has A established the guilt to the hilt. There is no denial that the complainant and one eyewitness Naeem are real brothers of the deceased while another eye-witness namely Mumtaz Ali is their cousin but it is well settled that mere relationship does not hold a witness interested to a party, reliance is placed on a case reported as 2010 SCM R 1752. The complainant and both the eyewitnesses have highlighted the details of tragic incident that at the time of incident they all three were present in the hotel of the deceased where appellant/accused was also present and took tea but on demand of payment of tea by deceased, the appellant/accused annoyed with deceased and instead of making payment of tea he made three straight fires with his official G-III Rifle upon him resultantly, he died on spot. The defence has not offered serious objection to the hotel of the deceased being the place of occurrence. If the hotel of the deceased was situated in the village of complainant party then no serious exception could be taken to the claim of all the three eye-witnesses that they were present there at the time in question. All the three eye A witnesses were subjected to an exhaustive cross-examination but in spite of various searching questions nothing advantageous could be extracted. No enmity whatsoever was alleged against the complainant and eye- witnesses and besides that being real brothers and the question of substitution of real culprit with that of appellant/accused, who is their cousin and humzulf of the deceased, does not arise which otherwise is a rare phenomenon.
10. The ocular account is fully corroborated by medical evidence. Dr. Akhtar Hussain (P.W.3), who conducted post-mortem of the deceased stated in his deposition that on 9-4-2004 he started postmortem 12-00 noon and finished the same at 1-00 p.m. And that on examination he found three fire-arm injuries. Besides that, burning and charring of skin was also found around the wound on inferior angle of left scapula at backside and that the time between death and post-mortem was one hours and 45 minutes meaning thereby that the time so given by this P.W. Accurately matches with time of occurrence as deposed by the eye-witnesses. Thus I do not find any conflict in between ocular and medical evidence which rather is corroborative on date, time of the incident and set of the injuries.
11. Coming to the recovery of the crime weapon and empties from the place of incident, admittedly crime empties and crime weapon viz., official G-III Rifle were recovered on the same day of incident and sealed then and there and thereafter sent to Ballistic Expert for his examination. The report of Expert produced at Exh.24 clearly indicates that three crime empties recovered from the place of incident had been fired from G-III Rifle recovered from the appellant/accused, as such, the recovery has also fully supported the prosecution case.
12. As far the question of the weak of motive is concerned, in case of murder, it may be stated that even failure of the prosecution to prove the motive is not fatal to the prosecution case. In this regard, reliance can be placed on a case-law reported in 2005 SCM R 427. Per prosecution on demand of payment of tea, appellant/accused annoyed with deceased and made firing upon him.
It has come on record that appellant/accused was police constable and had official G-III Rifle at the time of incident which is used in the commission of the offence. It indicates that the appellant/accused had not come in the hotel with intention to commit the murder but on open demand of charges of tea he feeling insult in front of available people could not control on his anger and all of a sudden went to the extreme level of firing committing murder of deceased, as such, trial Court was rightly justified in awarding lesser punishment of life imprisonment to appellant/accused. Since injured Shahid Ali himself had not implicated the appellant/ accused for causing him injuries but he only supported the incident said to have taken place in the hotel of deceased as such, appellant was rightly extended benefit of doubt to the extent of causing injuries to P.W. Shahid Ali. The impugned judgment is neither perverse nor arbitrary nor it suffers from any illegality or irregularity but is quite in consonance with evidence on record and law laid down by superior courts. No case is, therefore, made out for interference with the impugned judgment. The appeal of appellant/accused merits no consideration and is dismissed accordingly.