' FAROOQ ALI CHANNA , J.---The appellant Mureed Hussain has filed this Criminal appeal against the judgment dated 22-10-2009 passed by learned IInd Additional Sessions Judge, Khairpur (hereinafter referred to as trial Court) in Sessions Case No, 423/2006 State v. Mureed Hussain, arisen out of FIR No, 183/2006, Police Station Mirwah convicting the appellant under section 302(b), P.P.C. And sentencing him to imprisonment for life with fine of Rs, 50,000 which on recovery shall be paid to the legal heirs of deceased Shandad, however in default thereof to undergo R.I for 6 months. The appellant was extended benefit under section 382-B, Cr.P.C.
2. Concisely the facts of the prosecution case are that complainant Ghulam Hussain lodged the above referred FIR that on 2-9-2006 at about 8.15 a.m. He and his brother Shandad had gone to their land to take his turn of irrigation water rotation, while Shandad was opening the water course, Mureed Hussain armed with pistol and his brother Fazal Karim armed with gun came there. Mureed Hussain asked Shandad that how he has taken the irrigation water to his land and that he will kill him. Mureed Hussain thereafter fired from his pistol which hit Shandad resultantly he fell down.
Fazal Karim also fired from his gun in air. The complainant raised cries which attracted Khadim Hussain Banbhan and Abdul Rahman Chandio. The accused persons on seeing the witnesses ran away. Complainant thereafter took his brother to the hospital but he. Succumbed to his injuries on the way. Complainant thereafter left the P.Ws. Over dead body in hospital and went to lodge FIR at Police Station Mirwah.
3. ASI Sikandar Ali on receipt of FIR carried out the initial investigation, examined the dead body, visited the place of incident, seized the clothes of deceased and prepared mashirnamas. On arrival of Station Investigation Officer (SIO) SI Ghulam Shabbir, ASI Sikandar Ali handed over police papers to him for further investigation who arrested the appellant, recovered the crime weapon and recorded the statements of P.Ws. Under section 161, Cr.P.C. So also produced them before the Judicial Magistrate for recording their statements under section 164, Cr.P.C. During investigation, the Investigating Officer found co-accused Fazal Karim to be innocent; he was let off under section 169, Cr.P.C.
4. The prosecution to substantiate the charge against the appellant examined the complainant Ghulam Shabbir, P.Ws. Abdul Rahman Chandio and Khadim Hussain on ocular testimony, Atta Hussain, HC Mir Hussain, PC Huzoor Bux as mashirs, Dr. Abdul Sattar Shar who had conducted the post mortem of deceased Shandad, Abdul Shakoor, Tapedar of Deh Maroro who prepared the sketch of place of Wardat, ASI Sikandar Ali and SIP Ghulam Shabbir, the Investigating Officers. The trial Court recorded their evidence so also examined the appellant under section 342, Cr.P.C. And after affording an opportunity of hearing to the Counsel for both the parties convicted and sentenced the appellant as referred to hereinabove.
5. I have heard Mr. Habib Ahmed, learned counsel for the appellant and Mr. Khadim Hussain, learned Assistant Prosecutor General, Sindh so also scanned the evidence led by the prosecution.
6. Complainant Ghulam Hussain in his evidence narrated the detailed facts of incident that on 2-9- 2006 he and his brother Shandad had gone to irrigate their lands while his brother Shandad was standing in the water course, appellant Mureed armed with pistol and his brother Fazal Karim armed with gun came there and challenged Shandad as to why he was irrigating his land during their turn, on which Shandad came out from the water course whereas Mureed Hussain went inside the house of Siddique Punjabi and while standing under the Qabuli Babur tree fired at Shandad which hit him, he fell down in the water course. Accused Fazal Karim made firing in air. The complainant raised cries which attracted Khadim Hussain and Abdul Rahman Chandio. The accused on seeing the witnesses ran away. The complainant then with the help of Abdul Rahman took out Shandad from water course and took him to hospital on motor cycle where he succumbed to his injuries. Both the eyewitnesses Abdul Rehman and Khadim Hussain have supported the contentions of complainant. Per P.W. Abdul Rehman, he at the time of incident was in his Autaq whereas per P.W. Khadim Hussain, he was available in his land near tube well when they heard and saw that deceased Shandad and appellant Mureed Hussain were abusing each other on account of turn of rotation of water. Meanwhile Mureed Hussain went inside the house of Siddique Punjabi where from he fired at Shandad who after receiving the fire shot fell down in water course. Both the P.Ws. On fire shot report and on cries of complainant Ghulam Hussain went there and took out Shandad from the water course, thereafter the complainant took Shandad on motor cycle towards hospital at Thari Mirwah where he died.
7. Learned counsel for the appellant in his argument has invited the attention of this Court towards certain discrepancies and contradictions in the evidence of prosecution witnesses. Learned counsel mainly has emphasized that as per the evidence of complainant Ghulam Hussain and P.W.
Khadim Hussain the complainant had taken the injured Shandad to hospital on motor cycle and P.W. Abdul Rehman was with him whereas P.W. Abdul Rehman has categorically denied the above version and has deposed that P.W. Atta Muhammad also came at the place of incident and thereafter Ghulam Hussain and Atta Muhammad took Shandad in injured condition on motor cycle to Hospital at Thari Mirwah. Learned counsel has further contended that P.W. Atta Muhammad who is also mashir in this case has not claimed that he and Ghulam Hussain had taken the injured Shandad to hospital. According to. P.W. Atta Muhammad he was available at Thari Mirwah where he came to know about the incident and went to hospital to see his brother. Learned counsel has stated that the above contradiction alone was sufficient for disbelieving the evidence of prosecution witnesses so also casts doubt in the presence of complainant and the prosecution witnesses at the time of incident. Learned counsel has further contended that short span of time in lodging of FIR also casts doubt in the prosecution case, as usually the FIR of murder cannot be registered within half an hour, such efficiency in lodging FIR rapidly shows that police had obliged the complainant who was a Police official. Learned counsel has further contended that the complainant had also implicated Fazal Karim the brother of appellant with specific allegation of making fires in air. However during investigation said Fazal Karim was found innocent and was let off under section 169, Cr.P.C. Which shows that the complainant was not trustworthy and he lodged FIR with concocted story. Learned Counsel has further contended that the statements under section 161, Cr.P.C. Of the prosecution witnesses were recorded after 8 days of incident, such belated statements deserve to be ruled out of consideration. Recovery of 4 empty cartridges from the place of incident was mystery as it was the allegation against Fazal Karim that four empty cartridges recovered from the place of incident were fired by him but said Fazal Karim during investigation was found innocent, in the circumstances question arises that who fired the said four shots. All the above circumstances make the prosecution case doubtful and it is settled law that a slight doubt in the prosecution case particularly in heinous offence will entitle the accused to be acquitted.
8. Conversely, learned A.P.G. Has contended that the incident is not denied, all the witnesses have supported the prosecution. P.W. Khadim Hussain and Abdul Rehman have admitted the presence of the complainant at the place of incident. The appellant has not suggested to the above witnesses that at the time of incident the complainant was not present. Learned A.P.G. While responding to the delay in recording the statements of witnesses under section 161, Cr.P.C. Has contended that the names of both the eye-witnesses appear in the FIR lodged promptly as such delay in recording their statements under section 161, Cr.P.C. Will not be fatal to the prosecution, the investigating officer in his evidence before the trial Court has also explained such delay. It was further contended that no enmity is suggested by the defence to the complainant or any of the prosecution witnesses, therefore they have no motive to depose falsely and implicate an innocent person leaving the real culprit. Hence the prosecution has established the charge without any shadow of doubt.
9. The perusal of evidence on ocular testimony manifest that except the contradiction emphasized by the learned defence counsel all other discrepancies and contradictions being minor in nature shall not be fatal to prosecution case. The contradiction regarding P.W. Abdul Rehman accompanying the complainant while taking the deceased to hospital, no doubt is on record, however it is in respect of shifting the deceased from the place of incident towards hospital, such contradiction is not enough to disbelieve the evidence of prosecution witnesses on material facts narrated by all the witnesses unanimously that it was appellant Mureed Hussain who caused fire shot to deceased which resulted his death. The presence of complainant at the place of incident is admitted by both the eye-witnesses, his presence is also proved from the entries in the post mortem report which reflected that the dead body received at hospital was identified by complainant Ghulam Hussain and Atta Muhammad both brothers of deceased. The presence of appellant Mureed Hussain at the place of incident also finds support from the suggestion made by the defence counsel to complainant during his cross-examination that deceased Shandad had gun and he fired at accused Mureed Hussain first with intention to cause his Qatl-e-Amad, who due to straight firing of Shandad, got shelter in the house of Siddique Punjabi. The above suggestion also supports the prosecution version that appellant Mureed Hussain was inside the house of Siddique punjabi when he fired at deceased. The investigating officer in his evidence has explained the delay in recording the statements under section 161, Cr.P.C. That on the day of lodging of FIR he was out of station and on receipt of police papers for further investigation he issued notice to complainant to produce the witnesses. The Investigating Officer has further explained that the witnesses also did not appear before first investigating officer A.S.-I. Sikandar Ali, therefore, their statements under section 161, Cr.P.C. Could not be recorded on the same day of incident. Moreover the delay in recording the statements of witnesses could be fatal to the prosecution case if the names of said witnesses do not appear in FIR and they emerge all of sudden after lapse of a considerable time and narrate the facts of incident. In this case both the eye-witnesses have been named in promptly lodged FIR therefore belated recording of their statements under section 161, Cr.P.C. Will be of no help to the appellant. Contention of learned Counsel for the appellant that Fazal Karim was let off during investigation will also not be helpful to the appellant as the testimony of prosecution witnesses can be relied upon against some accused while rejected against the others. Let it may be mentioned that letting off Fazal Karim during investigation who was nominated in FIR by name with specific role of making fires in air, would be a good ground for believing that the Investigating Officer has conducted a fair and honest investigation without fear and favour or obliging either party. The P.W. Abdul Rehman Chandio is an independent and disinterested witness, he is not belonging to the community of both the parties, neither he has any relationship with the complainant nor enmity with the appellant, the P.W. Being resident of vicinity of the place of incident is a natural witness. In these circumstances his evidence cannot be discarded on the sole ground that he contradicted the contention of complainant and other witnesses regarding the shifting of deceased Shandad from the place of incident to hospital.
The appellant during trial has also not placed on record his defence nor he has suggested any enmity with the complainant and other witnesses which may be the motive of his false implication.
No doubt, in criminal cases the entire burden lies upon the prosecution to prove its case beyond any shadow of reasonable doubt, however, irrespective of contradictions in the evidence if the prosecution witnesses alleged specifically against the accused for committing an offence, the accused must be under obligation to bring on record certain facts of his false implication, which facts in this case are missing as such there appears no reason to disbelieve the ocular testimony of above named three witnesses who have no motive to depose falsely and implicate an innocent person in such a heinous crime of capital punishment.
10. The ocular testimony is also corroborated by the medical evidence. According to the evidence of eye-witnesses single shot was fired by appellant which hit deceased Shandad and passed through and through and per post mortem report so also the evidence of Doctor, deceased had one fire arm lacerated type of peneterating wound 1 c.m x 1 c.m into cavity deep at left side of chest near nipple (wound of entry) with no blackening the margins were inverted passed through and through to posterior lateral aspect of mid of chest of right side (wound of exit). Learned counsel for the appellant has not opposed the evidence of doctor nor questioned the entries available on post mortem report.
11. The prosecution case is also supported by the recovery of crime weapon on the pointation of appellant from his Autaq where it was buried. As per prosecution the appellant during interrogation volunteered to produce the pistol used by him in the commission of murder and led the police party towards his Autaq where he dug the earth and took out the pistol wrapped in a plastic bag in presence of witnesses who in their evidence have fully supported the recovery of pistol. The recovery witnesses were cross-examined at length but no material favourable to the appellant could be extracted. Learned counsel for the appellant in his argument has taken the plea that the pistol and empty bullet recovered from the place of incident sent together to ballistic expert was the violation of the directions passed by the honourable apex Courts in so many cases that the empties recovered from the place of incident be sent to the ballistic expert without waiting for recovery of crime weapon used in the offence. The above such directions are not applicable to, the facts and circumstances of this case as the crime weapon and empty bullet were recovered before the completion of investigation within a week after the incident therefore sent to ballistic expert together.
12. The motive behind the incident was the disputed rotation of irrigation water. The spade used for, opening the face of water course to take the irrigation water to land, was recovered from the place of wardat, which indicates the presence of deceased for the purpose of taking the turn of irrigation water rotation. Learned counsel for the appellant during trial made attempt to frustrate the motive by suggesting to the complainant that the complainant party as well as the appellant had already leased out their lands. However the learned Counsel did not suggest the name of Lessee nor led evidence in support of his version. The complainant has also denied the said suggestion as such the motive which is one of the strong circumstantial evidence is proved undoubtedly.
13. The trial Court while concluding the case has examined and discussed thoroughly the evidence led by the prosecution so also considered the factual as well as the legal aspects of the case and has come to the conclusion that the appellant was guilty of causing the murder of deceased Shandad. The findings of the trial Court are not perverse or suffering from any infirmity. In absence of any illegality by misreading or non-reading of evidence or jurisdictional error, the findings of trial Court cannot be interfered in appeal. Accordingly the Criminal appeal is dismissed.