MUHAMMAD NOOR MESKANZAI, C.J.--- Appellant Abdul Majeed alias Muhammad Iqbal through the instant appeal, has assailed the judgment dated 01.03.2012 delivered by the learned VIIth Additional Sessions Judge, Larkana, whereby the appellant was found guilty and convicted in following terms:- "Under section: 265-H(2), Cr.P.C. for an offence under section 394, P.P.C. as Tazir and sentence him to suffer imprisonment for life and to pay fine of Rs.100,000/- or in default of payment of fine to further suffer R.I. for six months.
Under section 302, P.P.C. and sentenced to suffer imprisonment for life and to pay fine of Rs.100,000/- or in default thereof to further suffer R.I. for six months . Both the sentences shall however run concurrently . The amount of fine if recovered shall be paid to the legal heirs of deceased as compensation under section 544-A,.P .P.C. with equal share. Accused is remained in jail as UTP hence benefit of section 382-B Cr . P. C. is extended to him."
2. The appellant filed Cr. Jail Appeal No.D-34/2017 before the High Court of Sindh, Circuit Court, Larkana, which was, later on, transmitted to this Court due to want of jurisdiction vide letter No. 3423 / ADMIN / 2018 dated 27.02.2018 of Additional Registrar , High Court of Sindh, Circuit Court, Larkana. The said appeal i.e. Cr. Jail Appeal No.D-34/2017, received from Hon'ble High Court, was registered in this Court as Jail Cr . Appeal No.10/K of 2018.
3. The brief facts of the prosecution case are that on 02.04.2006 at 2030 hours accused Abdul Majeed alias Muhammad Iqbal (present appellant) along with two unknown accused persons , armed with pistols, robbed a motorcycle CD-70 Model 2006 from complainant Muhammad Ali alias Asad Ali and on resistance offered by the complainant party , the accused fired at them, resulting in the death of Amjad Ali, brother of the complainant Hence, FIR No.21/2006 dated 02.04.2006 was registered at Police Station Darri, District Larkana under section 17(4) of the Of fences Against Property (Enforcement of Hudood) Ordinance, 1979 as well as section 337-H-2, P .P.C.
4. Investigation ensued as a consequence of registration of the crime report. During investigation, the police arrested accused Abdul Majeed alias Muhammad Iqbal on 20.04.2006. After completion of usual investigation challan was submitted before the trial Court.
5. Charge was framed against the accused on 10.08.2006 under section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. The accused did not plead guilty and claimed trial.
6. At the trial, the prosecution examined nine witnesses to prove its case. Muhamm ad Ali alias Asad Ali complainant appeared as PW.1 and gave details about the occurrence. PW.2 Mushtaq Ahmad and PW.3 Imtiaz-Ali as eye- witnesses gave the ocular account of occurrence. PW.4 Muhammad Zaman stood mashir of Mashirnamas Exh.7/A to Exh.7/D. PW.5 Dr. Manzoor Ali had conducted postmortem examination of the dead body of deceased Amjad Ali on 02.04.2006. He produced postmortem report Exh.8/A. and copy of inquest report as Exh.8/B. PW.6 Noor Mustafa, SHO conducted the investigation of the case. He visited the place of occurrence, secured blood stained earth, four empties of 30 bore pistol and sealed the same separately at the spot, prepared mashirnama Exh:7/A.
He visited the CMC Hospital, Larkana , examined the dead body , prepared mashimama Exh.7/B, prepared danistnama of dead body Exh.7/C and recorded statements of witnesses under section 161, Cr.P.C. He produced receipt regarding handing over the dead body to the heirs of deceased Exh.9/A. He arrested accused Abdul Majeed alias Muhammad Iqbal Shaikh and recovered pistol 30-bore along with four live bullets and robbed motorcycle and prepared mashirnama Exh.7/D. PW.7 Constable Gul Hassan escorted the dead body to CMC Hospital for postmortem and after postmo rtem examination handed over the dead body to Muhammad Ali, brother of the deceased through receipt Exh.9/A . PW.3 Zahid Hussain, Patrolling Officer, Motorway Police had recorded FIR Exh.4/A. PW .9 Rustam Ali Tapedar had prepared sketch of place of occurrence Exh.13/A.
7. On close of prosecution evidence, the statement of the accused was recorded under section 342, Cr.P.C. The accused denied the allegations levelled against him and pleaded innocence. The accused also recorded his statement on Oath as provided under section 340(2), Cr.P.C. and stated that on 02.04.2006 at about 12:00 to 12:30 mid-night he was sleeping in his house in Larkana, suddenly police forcibly entered his house and took him, his parents, brother in law Irshad Ali and his other family members to the police station, where in their presence, the police tortured and maltreated him. Qurba n Ali and the complainant also beat him. The police kept him 18 days in lock up, thereafter , the police produced him before the Judicial Magistrate, Larkana where he was informed that case was registered against him. He further stated that he is innocent and falsely implicated in this case at the instance of local Zamindar Qurban Ali Abbasi as his community did not vote him in various elections. On the date of occurrence i.e. 02.04.2006 he was in police custody . Further stated that all the PWs are interested and falsely deposed against him.
8. Learned Counsel for the appellant, inter-alia, contended that there is violation of section 103, Cr.P.C., as no one was associated with the recovery proceedings from the vicinity . The evidence used against the accused was not put to him while examining under section 342, Cr.P.C. It was further maintained that there are contradictions in the statements of PWs and the learned trial Court did not appreciate the evidence in its perspective. It was contended that the prosecution has not been able to prove the case against the appellant beyond reasonable doubt and the appellant is entitled for extension of benefit of doubt as a matter of right. He further stated that the Ballistic Expert's report carries no legal weight for the simple reason that the alleged recovered empties and recovered pistol were sent together to the Ballistic Expert. To substantiate his version, the learned Counsel for the appellant referred the following citations: -
(i) PLD 1982 Lah. 577 Muhammad Hassan v . The State
(ii) PLD 1968 Lahore 869 Muhammad Shafi and another v . The State
(iii) 1973 PCr .LJ 896 (Karachi)
Beekho alias Imam Bux and 2 others v . The State
9. Learned Additional Prosecution General vehemently opposed the submission by submitting that the FIR was promptly lodged and the appellant was specifically nominated with specific role. All the eye-witnesses have nominated the accused with clear role. The presence of the PWs at the venue is natural as the site cattle pond sought to be visited by the PWs belongs to the three brothers and fourth witness PW.2 Mushtaq Ahmed was also a close relative, therefore, the presence of PWs, at site cannot be doubted. He further stated that though the recovered empties were sent together with the pistol after recovery of pistol from the possession of the accused but it was not with mala fide intention or nor any such question was posed to the I.O. with regard to safe custody or substitution of the empties, therefore, the report of Ballistic Expert cannot lose its weight on such ground. Medical and ocular evidence corroborate and support each other . The identification of the accused has never been disputed nor the defence version does find support from any circumstance. Admittedly , there is no enmity among the parties and the motive to book the accused as set up by the defence, is neither reasonable nor plausible nor for that matter there is any evidence in support of such plea. So far as an obliging answer by a masher or some minor contradictions in the statements of witnesses are concerned, they lose their importance for a variety of reasons:-
(a) The PWs were not confronted with their statements under section 161, Cr.P.C., recorded soon after the incident nor any contradiction, improvement or omission was brought on record by the defence. So the statement has to be taken as it is.
(b) The second cross-examination by the Counsel was conducted almost after four to five years, therefore, any minor contradiction, if at all, appears that is not with mala fide faith but may be on account of human nature as minute things are not supposed to remain in mind as happened 4/5 years earlier , but nevertheless, the witnesses stuck to their GUN on material particulars of incident despite lengthy cross-examination they could not be shaken.
To substantiate his submissions, the learned Additional Prosecutor General placed reliance on the following citations:-
(i) PLD 2007 Lahore 368 Ghulam Nabi Sub-Inspector Police and 10 others v . Shaukat Ali and another
(ii) 2003 SCMR 673 Mehr Khan v . The State
(iii) 2004 SCMR 957 Tariq Ahmed alias T ahri v . The State
(iv) 2004 SCMR 662 Muhammad Munir v . The State
(v) 2006 SCMR 1 139 Waqar Ahmed v . Shaukat Ali and others
(vi) 2006 SCMR 1953 Abdul Majeed v . The State
(vii) 2006 SCMR 216 Muhammad lqbal v . The State
(viii) 2005 SCMR 1890 Sher Zaman v . The State
10. The learned Counsel for the complainant while adopting the arguments of learned Additional Prosecutor General stated that a lenient view has already taken by the trial Court and the findings so recorded are not open to any exception, the appellant has committed a cold blooded murder of an innocent person, therefore, the appeal is liable to be dismissed.
11. We have considered respective contentions so put forth and have gone through the record of the case with able assistance of the learned Counsel for the parties. However , we do not subscribe to the learned Counsel for the appellant for multiple reasons:-
(i) Firstly , because the FIR was lodged with promptitude and the appellant has been nominated with specific role.
Though it was night time but according to the statements of PWs the accused were open-faces, therefore, the appellant being already known to the prosecution witnesses was clearly identified in the light of electric bulb lit at that time besides the light of motorcycle, therefore, the identification of the accused with specific role in the FIR cannot be doubted. The two PWs available at the site also identified and recognize d the A appellant. Perusal of the statements of PWs reveals that there is no contradiction, dishonest improvement or material omission to justify the discarding of their statements. It is important to note that the defence has not been able to bring on record either any contradiction nullifying the impact of the statements or dishonest improvements justifying any interference for false booking of the accused. The identification of the accused with the specific role stands established beyond any reasonable doubt in the given A circumstances of this case. There may be some meager , minute and minor differences between the statements of the PWs in terms of distance among the accused, victim and PWs but that is not sufficient to lessen the weight of statements. Admittedly , after three to four years of the incident, the cross- examination was conducted so in such circumstances if one witness says the distance was ten paces and the second says it was fifteen feet, so in such circumstances such a minor discrepancy is bound to be ignored.
Similarly , the difference of five to ten minu tes regarding the incident is also immaterial as in such a situation, neither one is supposed to look at his watch nor is expected to weigh and measure the paces and distance. There is no major contradiction in the statements of the PWs, hence, the statements of the PWs, which are straight forward, trust worthy and confidence inspiring, cannot be discarded or ignored on such feeble grounds.
(ii) Secondly , so far as the relationship of PWs with the complainant is concerned mere relationship itself is no ground to discard the testimony of a witness. However , the relationship cannot be ignored, if there is a motive to falsely book an accused. In the case in hand the venue is not disputed as the site plan, prepared by the prosecution, suggests the same site where the incident took place and pointed out. The blood taken from the place of occurrence and the empties collected by the I.O. leave no room for doubt that the victim was murdered at the place that finds mention in the FIR. Similarly , the recovery of motorcycle from the possession of appellant is another corroborative piece of evidence. The ocular testimony regarding the seat of injuries and number of injuries stands corroborated by medical evidence. So in such circumstances, the learned Counsel for the appellant has not been able to point out any major contradiction or discrepancy warranting discardin g the evidence brought against the appellant as mentioned earlier . Admittedly , there was no confrontation of the statements recorded by the PWs qua their statements recorded under section 161, Cr.P.C., so, to disbelieve the statement, there must be glaring contradiction in the statement itself show ing the fact that if one piece of the state ment is believed that belies the other part of the statement or if the statement of one of the eye-witnesses is believed that clearly belies the statement of other PW, so, in that type case though no confrontation be made, yet the Court may be in a position to discard the testimony but here in the instant case this position too is not available.
(iii) Thirdly , of-course, the empties and the pistol were sent to Ballistic Expert together . Therefore, this piece of evidence is discarded. So even if this piece of evidence is discarded, yet rest of the straight forward and ocular evidence cannot be discarded or rejecte d merely because of rejection of this corroboratory piece of evidence.
Though a lengthy cross-examination was conducted but the witnesses stuck to their gun and their testimonies could not be shaken. The submissions of the learned Additional Prosecutor General has got sufficient force that the complainant why to substitute the real culprit by an innocent person, whereas the defence does not suggest any enmity or on the part of the complainant and PWs with him. The appellant while recording his statement on Oath as provided under section 340(2), Cr.P.C., did not attribute any ill-will for his false involvement in this case on account of any enmity between the complainant, PWs and the appellant. The plea that his involvement is at the instance of one Qurban Ali Taluka Nazim is neither appealable nor reasonable and plausible. There is no evidence, whatsoever , in support of this plea. Moreover , the stance of the appellant that the family members of the appellant were taken into custody to force him to make a confessional statement, does not appeal to reason nor any of the inmates was produced before the court to support the contention nor for that matter any such grievance was shown when the accused was produced for remand during the course of investigation.
(iv) So far as not confronting. the accused regarding materials collected by the prosecution in his statement recorded under section 342, Cr.P.C. is concerned, of-course, the accused was net Confronted with the report of Ballistic Expert. Though there is an irregularity but since the report of Ballistic Expert has been discarded by us and further this matter has already consumed a very very lengthy period, therefore, it is not advisable to remand the case to confront the accused with a piece of evidence that has been discarded. The appellant entered the witness box and recorded his statement under section 340(2), Cr.P.C. but interestingly, he did not deny the recovery of robbed motorcycle.
The trial Court has dealt with each and every piece of evidence by appreciating the same strictly in accordance with law , hence findings so recorded are not open to any legal exception.
12. For the foregoing reasons, we see no merit in this appeal, which is dismissed accordingly .