FAROOQ ALI CHANNA, J.---By this judgment, I intend to dispose of the instant criminal jail appeal, filed by the appellant Qurban against the judgment dated 8-9-2007, passed by IInd Additional Sessions Judge, Thatta, in Sessions Case No.135 of 2002 (State v. Qurban Mallah), arising out of FIR No.16/2002, Police Station Jati, convicting the appellant under section 302(b), P.P.C, sentencing him to imprisonment for life with compensation of Rs.1,00,000 (One Lac) to be paid to the legal heirs of deceased Nazeer Ahmed in terms of section 544-A, Cr.P.C., in default thereof the appellant shall suffer S.I. For six (6) months more. The appellant was extended benefit under section 382-B, Cr.P.C.
2. Concisely facts of the case are that complainant Ali Muhammad lodged FIR that on 25-5-2002, he and his brother Nazeer Ahmed were available in their Otaq, when at about 5:00 p.m., their Hari Qurban Malah duly armed with hatchet came, abused Nazeer Ahmed and demanded share of his Harap from him, Nazeer Ahmed restrained him that he should not abuse, on that appellant flared up and caused hatchet, blow on the head of Nazeer Ahmed. The complainant raised cries, which attracted P.Ws. Rajib son of Haji Ismail Memon and Abdul Wahid son of Ibrahim. The appellant on seeing the witnesses ran away, throwing the hatchet. Nazeer Ahmed due to hatchet injury died instantaneously on the spot. The complainant thereafter left P.Ws. Over the dead body and went to lodge FIR.
3. The investigating officer carried out the investigation, recorded the statements of P.Ws. Under section 161, Cr.P.C, seized the hatchet used in crime from the place of incident, arrested the appellant and after completing the investigation submitted challan.
4. The prosecution in order to substantiate the charge has examined the complainant Ali Muhammad and P.Ws. Rajib son of Haji Ismail and Abdul Wahid on ocular testimony, P.W.
Muhammad Rajib son of Haji Suleman as Mashir of visiting the place of incident and recovery, Dr. Mushtaq Ahmed, who conducted the postmortem over the dead body, corps bearer P.C. Nazeer Ahmed, SIP Qurban Ali the second investigating officer, Tapedar Ali Muhammad, who prepared the sketch of the place of incident, P.W Mohammad Tayyab scriber of FIR, Mr. Jived Akhtar, Judicial Magistrate, who recorded the statements under section 164, Cr.P.C. Of prosecution witnesses and S.I.P Khan Muhammad the first investigating officer of the case. The trial court also examined the appellant under section 342, Cr.P.C, wherein he has denied the prosecution version.
5. Per prosecution, complainant Ali Muhammad, P.Ws. Rajib son of Haji Ismail and Abdul Wahid are the eye-witnesses of incident, whereas, the perusal of their evidence reflects that in fact the complainant is the sole eye-witness and the remaining P.Ws. Came at the place of incident on cries raised by the complainant after the appellant had inflicted hatchet blow to deceased Nazeer Ahmed, however they had seen the appellant running from the place of incident. The complainant in his evidence before the trial court has narrated the incident in detail, implicating and identifying the appellant to be same assailant who caused murder of Nazeer Ahmed. The complainant was cross examined at length, but learned counsel for the appellant has failed to extract any contradiction or evidence causing doubt in the prosecution case. The presence of complainant at the place of incident, being the owner of Otaq constructed on his land is natural; no specific enmity has been alleged against the complainant, compelling him to implicate an innocent person falsely leaving the real assailant. FIR was lodged within 3 and half hours after the incident, such delay seems to be due to the distance of 9-10 kilo meters between the place of incident and police station, as such FIR be presumed to have been lodged promptly and the complainant had no time to nominate the appellant falsely after consultation and thought. The appellant's plea was that he was asked by the complainant to cultivate his land on Harap, to which the appellant refused, hence the complainant was annoyed and implicated him in this case falsely. Such defence version bears no weight, nor inspires confidence to believe that the appellant was implicated falsely on that account. The incident took place at 5:00 p.m. In broad day time and the appellant was known to the complainant prior to this incident, as such there is no question of mistake in identification, in these circumstances the evidence of complainant is unimpeachable, trustworthy and reliable.
6. Learned counsel for the appellant in his arguments has contended that it was a murder case and the conviction in such a heinous offence on the basis of sole evidence of complainant, who being the real brother of deceased was interested witness, without independent corroboration was unwarranted. Learned counsel has further contended that the trial court in the impugned judgment has held erroneously that P.W. Rajib and Abdul Wahid were the eye-witnesses of the occurrence; as such the impugned judgment is suffering from infirmity and misreading of evidence, therefore liable to be set aside. Learned counsel has further contended that the hatchet was not recovered from the possession or on the pointation of appellant and it was recovered by the police from the place of incident in absence of the appellant, as such the arrangement of crime weapon to strengthen the prosecution case cannot be overlooked, hence the prosecution case is not free from doubt.
7. Conversely, learned A.P.G. Has argued that the complainant has fully implicated the appellant, his evidence is corroborated by other witnesses, who were attracted on the cries of complainant and had seen the appellant running from the place of incident. Learned A.P.G. Has further contended that it is not the prosecution case that the hatchet was recovered from the possession or on pointation of appellant. Per prosecution case, the appellant after causing hatchet blow had thrown the hatchet at spot and ran away; this fact finds support from the evidence of mashir in whose presence the hatchet was recovered by the investigating officer from the place of incident.
There is no enmity of appellant with the prosecution witnesses; as such they had no reason to implicate the appellant falsely, under these circumstances the prosecution has proved the charge of murder of Nazeer Ahmed against the appellant without any shadow of reasonable doubt and the appeal is liable to be dismissed.
8. I have examined the fate of solitary evidence of complainant, it is provided under Article 17(2)(b) of Qanun-e-Shahadat Order, 1984 that except matters pertaining to financial or future obligations, in all matters the Court may accept, or act on, the testimony of one man or one woman or such other evidence as the circumstances of the case may warrant. Article 17 of Qanune-Shahadat enshrines the well recognized maxim that "Evidence has to be weighed and not counted". If the legislature was to insist upon the plurality of witnesses, cases where the testimony of a single witness (sic) in prosecution case, the criminals in all such cases would go unpunished. The sole witness is competent witness and his evidence can be considered to be reliable if the said witness comes within the parameters of Article 3 of Qanun-e-Shahadat. In the instant case as I have observed in the preceding paras that the defence has failed to extract any contradiction in the evidence, creating doubt in the prosecution case, as such there appears no reason to discard the evidence of complainant being solitary evidence. Prosecution witnesses Rajib and Abdul Wahid have corroborated the evidence of complainant. Per prosecution, the said witnesses had come on the cries of complainant and had seen the appellant running from the place of incident. Both the witnesses have fortified themselves to that extent and have not claimed that they had seen the appellant causing the hatchet injury, they have deposed what actually they had seen without improving or exaggerating the evidence, as such both the witnesses are reliable and trustworthy.
The evidence of the complainant also finds support from the contents of FIR so also the medical evidence which is in consonance with the prosecution version that the appellant had caused sharp cutting side hatchet injury on the head of deceased. The mashirs of recovery have also supported the prosecution; their evidence has also riot been shaken in any manner. Both the investigating officers in their evidence before the trial court have narrated in detail whatever they extracted during investigation., The appellant's version that since he refused to cultivate the land of complainant, therefore, involved in this case is contradictory to his earlier version, the appellant while cross-examining the P. Ws. At the time of recording their statements under section 164, Cr.P.C.
Before the Judicial Magistrate had taken the plea that the deceased was committing mischief with his wife and he made such complaint to P.W. Rajib, who also advised the deceased to be gentleman. The trial court has discussed the prosecution evidence consciously and the conviction of the appellant is based upon cogent reasons supported by the relevant provisions of law, as such the impugned judgment does not suffer from illegality, infirmity or misreading and non reading of evidence, hence does not call for interference of this Court.
' Criminal Jail Appeal is dismissed.