FAHIM AHMED SIDDIQUI, J.---The appellants, through the instant criminal appeal had questioned the judgment dated 22.06.2013, passed by Additional Sessions Judge-I, Shikarpur. Through the impugned judgment the learned trial Court convicted the appellants and sentenced them to undergo imprisonment for life for an offence under section 302(b), P.P.C. for murder of deceased Met. Nawab.
2. The complainant Muhammad Khan Marfani lodged FIR No.178 of 2009 at Police Station Stuart Ganj regarding murder of his aunt Mst. Nawab. He alleged in the report that his uncle Bhai Khan married with deceased about 10/11 years back in court on her free will. The son of deceased from her previous husband was annoyed with the said marriage. On the Eid day, his uncle went to Karachi for some personal work. On the day of incident i.e. 30.11.2009, he along with his aunt Mst.
Nawab went to truck adda to see some relatives for saying Eid greeting, where his maternal cousin Abdul Rasheed met them. It was 12:30 p.m. when they reached in Kirri Atta Muhammad Mohalla, near the house of Agha Qamaruddin Mushwani, where they saw (1) Nazir Ahmed, (2) Meer Nawaz armed with T.T pistols, (3) Abdul Rasheed empty-handed and one unknown accused. Accused Abdul Rasheed instigated other accused to commit murder of Mst. Nawab. Accused Nazir Ahmed fired at Mst. Nawab, which hit him at her head. Accused Meer Nawaz fired at Mst. Nawab, which hit her at her right arm wrist. Due to fear of weapons, they kept quite. Thereafter all the accused persons decamped from the scene of offences. The complainant found his aunt Mst. Nawab severely injured. She was shifted to hospital, where she expired due to injuries.
3. Subsequent to the registration of FIR, police arrested the accused persons and continued investigation. After investigation, the final report was submitted before the concerned Judicial Magistrate, who took cognizance of the offence. Subsequently, the matter was entrusted to the trial Court. The learned trial Court framed charge against the appellants. The appellants abjured their guilt and claimed complete innocence, as such trial was initiated. During trial, the prosecution examined teeming number of witnesses with the following details. i) Complainant Muhammad Khan (Ex.10), who produced FIR and other relevant documents. Being a witness of ocular account, he described the entire scenario in his deposition. ii) Eye-witness Abdul Rasheed Marfani. (Ex.11), who also described the entire detail of incident with part played by the accused persons in commission of offence. iii) Dr. Seema Shaikh (Ex.12), who produced inquest report and post-mortem report and also described the injuries sustained by the deceased and other relevant factors in respect of her death on the medico-legal point of view. iv) SIP Sudheer Ahmed Bhayo (Ex.1.3), who produced memo of arrest and recovery. v) P.C. Ghulam Asghar (Ex.15), who is a formal witness. vi) PW Shah Muhammad (Ex.16), who produced memo of inspection of dead body, Danishnama, memo of place of incident and memo of production of clothes of deceased. vii)Tapedar Nadeem Pervaiz, who produced the sketch of place of incident (as it would be at the time of incident).
4. After examination of all the prosecution witnesses, the learned prosecutor closed the side of prosecution. The trial Court examined the accused persons under section 342, Cr.P.C., in which they confronted with the evidence produced by the prosecution against them. They denied all the allegations level against them in their statement recorded under section 342, Cr.P.C. They also produced the copies of judgment of the Judicial Magistrate through which they were acquitted in the companion cases under section 13(d), Arms Ordinance regarding recovery of alleged crime weapons. They also preferred to examine defence witnesses. The trial Court also examined defence witnesses namely Nihal Khan (Ex.21) and Hakim Khan (Ex.22) and after examination of defence witnesses, the defence counsel closed the defence.
5. At the end of trial, the learned trial Court came to conclusion that the prosecution has proved the case, as such the impugned judgment was pronounced as mentioned in the introductory paragraph.
6. Preferring his submissions, the learned counsel for the appellants draws attention towards certain portions of the deposition recorded before the trial Court. While assailing the impunity judgment, he submits that the appellants are said to be armed with T.T pistols and they were arrested on the same night with the T.T pistols but they were acquitted in the case of illegal weapons. According to him, when the recovery of the T.T pistols was not established, the instant case also becomes doubtful. He submits that it is hard to believe that the Appellants remained available at their place for about eight and half hours after causing murder of the deceased. He submits that the deceased was actually killed by dacoits and the complainant has falsely involved the appellants. He submits that there are so many contradictions in the deposition of complainant and other witnesses, which are sufficient to establish that the prosecution case is false and fabricated. He submits that the lodging of FIR by complainant is not proper and he has to wait for alleged second husband to come and report the incident. He submits that the story of second marriage of the deceased is false and she remained wife of the father of appellant Meer Nawaz.
According to him, motive of the case is not established during trial.
7. Combating the aforesaid submissions of the learned counsel for the appellants, the learned Prosecutor submits that acquittal in Arms Ordinance case cannot be a ground for acquittal in the instant case. According to her, the prosecution witnesses have supported the case of prosecution and there is no major contradiction in the deposition of complainant and other witnesses. She points out that the empties recovered from the place of incident matched with the recovered weapons. Regarding motive, her contention is that the same is fully described by the prosecution witnesses during trial.
8. I have examined the entire material available on the record in the light of valued submissions of the learned counsel for the appellants as well as learned ADPP. It is the case of the prosecution that the deceased married with the uncle of the complainant after getting divorced from her previous husband. The motive of the incident is that the accused Nazir Ahmed (son of the deceased woman from her previous husband) was annoyed due to her divorce from his father and a remarrying with the uncle of complainant namely Bhai Khan. As per prosecution case at the time and place of incident complainant and eyewitnesses were present. The present appellant along with absconding accused came at the place of incident and on the investigation of absconding accused commissioned the offence of murder of deceased Nawab.
9. In the instant case, the prosecution was equipped with ocular evidence coupled with circumstantial evidence and real evidence in the shape of empties, crime weapons, bloodstained clothes of deceased, bloodiest in earth etc.
10. It is to be considered that the accused persons have been nominated in the promptly lodged FIR and they were well identified by the complainant and other eye-witnesses. The complainant and eyewitness are consistent on the vital point of their deposition. It is alleged by the complainant that at the time of incident along with him and his two cousins namely Abdul Rasheed and Khaliq Dad also available at the scene of offence. The presence of eye-witnesses is properly explained and reasoned out by the complainant. Just after the incident, complainant party firstly taken the deceased woman in injured condition towards the Hospital and subsequently, complainant approached the Police Station for lodging of FIR. The incident has taken place at 12:30 hours while FIR was lodged at 13:30 hours. In such a short time, question of consultation and fabrication does not arise. It appears that the factum of case narrated in FIR is very much natural and without any addition and exaggeration, as it was reported within an hour of the incident. On being cross- examined, the complainant Muhammad Khan and eye-witness Abdul Rasheed remained firm on the vital point of the deposition. The trial Court has rightly believed the consistent and coherent statements of complainant and eye-witness which corroborate each other. On going through the testimonies of these two witnesses, it is revealed that both the appellants came to the place of incident and they actively participated in the incident by firing upon the deceased woman. The motive for the incident is described by the complainant not only in the body of FIR but also in his testimony.
11. The complainant and eyewitness in their testimonies described that the fire shots of both the appellants received by the deceased on her body. The complainant described that the deceased received a fire shot on her forehead while the other fire shot was received by her on her right arm.
Both the injuries were attributed to accused Nazir Ahmed and Mir Nawaz, respectively. The autopsy of deceased was conducted by Dr. Samina, who in her testimony, has said that the deceased received several injuries including fire arm injury on her forehead as well as right arm. The lady MLO has observed following injuries:
(i) One LTP wound measuring 1.2 cm in diameter with inverted margin with cavity deep over mid- forehead (wound of entry).
(ii) One LTP wound measuring 1.6 cm in diameter present over right temporarital region of head (exit).
(iii) One LTP wound measuring about 1.5 cm in diameter present on right upper arm in its 1/3rd interiority (wound of entry).
(iv) One LTP wound measuring 1 cm is present on the right upper arm in its Middle 1/3rd medially (wound of exit).
(v) One LTP wound of R/entry measuring 1 cm in diameter with inverted margin present over right lower lateral wall of chest (continuation of injury No. 3).
12. If the medical evidence is analyzed, it will become clear there in all three firearm injuries (wound of entry) were received by the deceased, amongst them one is on her head and one is on her right arm. The two injuries mentioned by the WMLO are on her chest, and regarding last injury, she opined that the same is continuation of injury No.3. It is worth mentioning that the deceased is a woman who received multiple injuries, amongst them the seats of two injuries have been mentioned by the complainant in a promptly lodged FIR. Considering that the deceased is a woman and due to such obvious reason, the injury on her chest was not mentioned by the complainant in FIR as well as in the inquest report. In such a situation, I am of the considered view that F there are no major contradictions in the ocular and medical evidence.
13.It is also important to note that both the appellants were arrested within a few hours after the incident and crime weapons were recovered from their possession, which were sent to ballistic expert along with empties recovered from the place of incident. As per forensic report of weapons recovered from the appellants, the crime empties were fired from the weapons i.e. .30-bore pistols, which were recovered from the appellants. As per FSL report, the earth collected from crime scene and last worn clothes of deceased were stained with human blood. The learned counsel for the appellants has pointed out that both the appellants have been acquitted by the learned judicial Magistrate in the companion cases registered against them under Arms Ordinance. He submits that when the recovery of crime weapon is declared doubtful, the conviction and sentence in the instant matter is contrary to justice. In this respect, I am of the view that the criminal cases having their own footing and failure of one criminal case will have no effect on the other criminal case. In criminal jurisprudence, every case has to be looked into on the basis of evidence recorded in the case irrespective of any exterior matter including the result of a companion case. In this respect, I would like to take reliance from a case reported as The State v. Khan Muhammad alias Khanan (2005 PCr.LJ 811), wherein a division bench of this Court has not considered the acquittal of accused in 13 (e) Arms Ordinance case in another trial, which is said to be the main case.
14. The motive of the case is described as the second marriage of deceased with the uncle of complainant namely Bhai Khan. It is the case of the prosecution that the deceased after getting her earlier marriage dissolved, contracted second marriage with the uncle of complainant on I her own free will and consent. As per prosecution case, the appellant Nazir Ahmed is the son of the deceased from her previous husband and he was annoyed with the deceased on account of her marriage with Bhai Khan. During arguments, the learned counsel for the appellants submits that the motive of the case could not be proved by the prosecution during trial. In this respect, my observation is that the motive was very much agitated by the complainant in the promptly lodged FIR and he has also described the same during his testimony. The complainant has reasoned out the absence of the husband of the deceased by describing that at the time of incident he was out of town. The learned counsel for the appellants also tried to make it a great point that the prosecution has not examined Bhai Khan and even his statement under section 161, Cr.P.C. was not recorded by the investigation officer. In this respect, my observation is that there was no reason to record the statement of Bhai Khan by the investigation officer, as he is not the witness of the incident. The complainant in his deposition has stated that the marriage certificate (Nikah-nama) of deceased with Bhai Khan was provided to investigation officer. However, during trial the said marriage certificate (Nikah-nama) was not produced. I am of the view that non-production of marriage certificate (Nikah-nama) will not blemish the prosecution case in presence of confidence inspiring, evidence available with the prosecution and produce during trial. However, an aspect of the case is also considerable. The appellants preferred to examine defence witnesses namely Bhai Khan (previous husband of deceased) and Hakim (brother of deceased). Although DW Nihal Khan claimed that the deceased was his wife and she did not marry with Bhai Khan but in response to a question during cross-examination conducted by ADPP, he stated that he did not know that Sadoro, Miss Suhni, Miss Samina and Miss Shabiran were born to deceased from wedlock of Bhai Khan. I am of the view that this response from the mouth of the previous husband, who is denying the second marriage of deceased itself throws light that the deceased was wife of Bhai Khan at the time of her death. It is also worth mentioning that just after receiving firearm injuries, the complainant and other relatives of Bhai Khan have taken the deceased in injured condition to the hospital. The deceased was identified to police and WMLO as wife of Bhai Khan. It is also worth mentioning that the dead body of the deceased was handed over to one Muhammad Khan. It is also notable that neither the previous husband of the deceased nor her brother tried to collect the dead body of the deceased for burial.
15. In the present case, the prosecution has proved the case through ocular account as well as considerable corroborative evidence in the shape of recovery of crime weapons, medical evidence, positive ballistic expert report. The complainant and eye-witness remained firm on the vital point of their testimony during cross-examination conducted at length.
16. The upshot of the above discussion is that no convincing material could be pointed out by the defence counsel to overturn the findings of the trial court. Resultantly, the instant criminal appeal is dismissed.