ZULFIQAR ALI SANGI, J. Through this appeal, appellant Qurban Ali Bullar has challenged the Judgment dated 02.09.2010, passed by learned Additional Sessions Judge, Naushahro Feroze, in Sessions Case No.180/2003 re-"The State v. Deedar Ali and others", emanated from Crime No.39 of 2003, registered at Police Station Moro, under sections 302 and 34, P.P.C., whereby the appellant was convicted for offence punishable under section 302(b), P.P.C. and sentenced to suffer imprisonment for life and to pay compensation of Rs,100,000/- to be paid to the legal heirs of deceased Manzoor Ali under section 544-A, Cr .P.C. and in default thereof he will suffer S.I. for six months more. The appellant was also extended benefit of section 382-B, Cr.P.C.
2. Briefly the facts of the prosecution case are that on 25.04.2003, complainant Ali Muhammad along with his sons Manzoor Ghulam Mustafa and relative Gulab were returning to their village from Nawabshah in their car, when at about 12.30 a.m. night, they reached at "4-mile" National Highway, they noticed four police officials standing by the side of the road and a police mobile was also available there. The said officials signaled them to stop the car but it was stopped a little ahead on which one SIP who was heading the police party, got annoyed and asked the complainant party as to why they had stopped the car so ahead. The complainant party made them their introduction, saying that they are respectable persons of Moro Town, in spite of that the head constable made a shot with his Kalashnikov which hit complainant's son Manzoor Ali and on his cries they went away. Thereafter the complainant party found that Manzoor Ali had sustained firearm injuries and had gone unconscious. Complainant's son Ghulam Mustafa identified the police officials as SIP Deedar Ali Sahito, HC Qurban Ali and constables Todo Khan and Ali Gul. They took the injured to Taluka Hospital Moro where he passed away. Thereafter the complainant went to Police Station on the same night at about 2.00 a.m. and reported the incident.
3. After registration of FIR, police conducted investigation, arrested accused and on completion of, investigation submitted challan against them in the concerned court.
4. After completing all the legal formalities, the trial court initiated trial by supplying copies to the accused as required under section 265-C, Cr.P.C. The charge was framed against the accused to which they pleaded not guilty and claimed trial.
5. The prosecution in support of its case examined P.W-1. SIP Allauddin Ex.7 who produced FIR at Ex.7-A, PW-2 eye-witness Ghulam Mustafa at Ex.8, PW-3 eye-witness Gulab at Exh.9, PW-3 mashir Qadir Bux at Exh.10, who produced mashirnama of dead body, danistnama, mashirnama of place of incident and, recovery of car and mashirnama of arrest of accused and recovery of crime weapons at Ex.10-A to 10-D respectively, PW-5 M.O. Dr. Wajihuddin at Ex.11, who produced postmortem report of deceased Manzoor Ali and its lash Chakas form at Ex.11-A and 11-B respectively, PW-6 Inspector Fateh Ali at Ex.12, who produced Ballistic Expert's report and Chemical examiner's report in respect of blood stained earth of deceased at Ex.12-A and 12-B, certificate in respect of damage car at Ex.12-C, PW-7 Tapedar Aijaz Hussain at Ex.13, who produced sketch of vardat at Ex.13-A.Thereafter, learned DDPP for the state closed the side of prosecution at Ex.14.
6. Statements of accused were recorded under section 342, Cr.P.C. at Exhs.15 to 18, in which they denied the allegations of the prosecution and claimed their innocence. However, neither they led evidence in their defence nor examined themselves on oath under section 340(2), Cr.P.C. They produced copy of judgment dated 08.08.2009 passed by learned 3rd Civil Judge and Judicial Magistrate Kandiaro whereby they were acquitted from the charge under order 155(c) (d) of Police Order, 2002 in Karawai No.01/2003 of Police Station Moro. After recording evidence and hearing the parties, learned trial court convicted the accused as stated above, hence the instant appeal.
7. Learned counsel for the appellant has contended that the prosecution has failed to prove its case beyond reasonable doubt; that there are major contradictions in the evidence of prosecution witnesses; that the trial court has not appreciated. the evidence and only on the basis of chief- examination has convicted the appellant and cross-examination of the witnesses has not been discussed in the judgment; that it has not come in evidence as to whose fire shot was hit to the deceased; that PW-1 stated that he heard fire shot but he has not seen as to who had fired upon them; that PW-2 Ghulam Mustafa deposed before the court that the fires were made from the backside; that it was a night time incident and the car was on speed, as such identification on its light is doubtful; that there are contradictions in the deposition about fires made by the accused; that there is contradictions in ocular and medical evidence in respect of injuries sustained by the deceased; that the complainant was expired and was not examined before the trial court; that it was case of prosecution that PW Ghulam Mustafa had identified the accused, however during his deposition he has stated that accused were not known to him and he never seen Qurban (appellant) previously; that the empties allegedly recovered from the place of vardat and the motive were not put to the appellant in his statement under section 342, Cr.P.C; that the co- accused Deedar Ali, Ali Gul and Todo Khan were acquitted by the trial court on same set of evidence, however appellant was convicted, which is against the principle of falsus in uno, falsus in omnibus; that the empties were recovered 50 paces away from the car; that the Doctor has deposed in his evidence that two fires were hit to the deceased from the left side and one from right side, whereas ocular evidence is that the shot was fired from back side and there is no injury of the backside to the deceased; that the PWs and mashirs are close relatives of the deceased; that as per postmortem report the death was instantly, however complainant and PWs have stated that when they reached at the hospital then the deceased had died; that the car was not produced before the trial court and a fake certificate about its condition was produced; that as per ballistic report fires were made from SMG; that the appellant was acquitted in Criminal Case No.01 /2003; that as per allegation only Ghulam Mustafa identified and other PWs were told by Ghulam Mustafa about the names of accused persons; that the impugned Judgment is against the law, facts, principles of natural justice and equity; that learned trial court has erred in convicting the appellant by not taking into consideration the entire material and thus the impugned Judgment is liable to be set-aside; he finally prayed that by extending benefit of doubt the appellant may be acquitted. Learned counsel for the appellant relied upon the cases of Muhammad Shah v. The State (2010 SCMR 1009).
8. Learned counsel for the legal heirs of the deceased has contended that the prosecution has proved its case against the appellant beyond reasonable doubt by producing oral as well as medical evidence; that no major contradiction is pointed out by the defence counsel; that FIR was lodged promptly assigning active role to the appellant as such false implication of appellant cannot be claimed; that so far the non-association of Witnesses from the locality is concerned, it has been observed by the Apex court in number of cases that it is matter of common knowledge that the people from the locality generally hesitate to come forward as witness in such cases for fear of reappraisal from the accused party; that the offence in which the appellant is involved is heinous one; that the learned trial court has rightly convicted the appellant and the appellant is not entitled for any lenient view, hence he prayed that the appeal of the appellant may be dismissed in support of his contentions leaned counsel for the complainant placed his reliance on the cases of Anwar Shamim and another v. The State (2010 SCMR 1791), Gulraiz Akhtar and others v. The State (2009 SCMR 493), Muhammad Talha Hussain alias Noman and another v.
The State (PLD 2008 SC 115), Khan alias Khani and another v. The State (2006 SCMR-1744), Wilayat Ali v. The State and another (2004 SCMR 477), Abdul Rauf v. The State and another (2003 SCMR 522), Allah Bakhsh v.The State 2002 SCMR 1260, Dr. Javaid Akhtar v. The State (PLD 2007 SC 249), Waris Hussain Shah v. Abid Hussain Shah and 3 others (2001 PCr.LJ 268), Abdul Rashid and 3 others v. Abdul Ghaffar and 5 others (2001 PCr.LJ 524), Shabbir Ahmed and another v. The State and others (1997 PCr.LJ 1539), S.A.K Rehmani v. The State (2005 SCMR 364), Haroan Rasheed and 5 others v. The State and another (2005 SCMR 1568), Sikandar Teghani alias Muhammad Bux. Teghani v. The State (2016 YLR 1098), Qamar-uz-Zaman alias Kala v. The State (2011 SCMR 856), Saeed Khan and 5 others v. The State and another (2008 SCMR 849), Muhammad Latif alias Tifa v. The State (2008 SCMR 1106), Nawab Ali v. The State (2014 PCr.LJ 885), Ghulam Rasool Shah v. The State (PLJ 2009 Sh.C.(AJ&K) 600), Tanveer Ahmad and another v. The State and another (PLJ 2009 Sh.C. (AJ&K) 89 and Muhammad Hanif Khan and another v. The State and another (2001 PCr.LJ 827).
9. Learned D.P.G. appearing for the state has supported the arguments advanced by learned counsel for the L.Rs. of the deceased so also supported the impugned judgment and further contended that there appears no illegality or irregularity in the impugned judgment which is well reasoned and does not require any interference of this court. He also places raliance on case law Qaddan and others v. The State (2017 SCMR 148), Allah Bakhsh v. Shammi and others (PLD 1980 SC 225), Behram v. The State (2015 YLR 150), Muhammad Faryad v. The State (2010 SCMR 166) and Mobashar. Ahmed v. The State (2009 SCMR 1133).
10. I have heard the learned counsel for the respective Parties and have gone through the material available on the record with their able assistance.
11. The evidence produced by the prosecution in the shape of ocular evidence and medical evidence coupled with documentary evidence, includes Postmortem report of the deceased, established beyond any shadow of reasonable doubt that on 25-04-2003 at about 12.30 am (night) at national Highway near Choutho Mail, deceased received firearm injuries on his person and was died due to un-natural death.
12. Prosecution in order to prove the death of deceased as un-natural examined Dr. Wajihuddin, who has deposed that he was posted as M.0 at Civil Hospital "Moro. The dead body of deceased Manzoor Ali son of Ali Muhammad Korai was brought by H.C. Abdul Shakoor of PS Moro for post mortem, examination and report. The Doctor deposed that on 25.04.2003 he was posted as Medical Officer at Civil hospital Moro. At 1.00 am (night) a Police party came there on police vehicle and asked him to examine one dacoit lying in Police vehicle as injured. He rushed and examined the person but who had already expired. He conducted the post mortem after receiving the inquest report by the police. Ghulam Mustafa son of Ali Mohammad Korai and Ghulam Nabi son of Mohammad Bux Korai identified the dead body as Manzoor Ali. He examined the dead body and found three injuries on his body. The injury No.1, Lacerated punctured wound about 3 c.m. in diameter x cavity deep on right side of chest wall at scapular region, posteriorly. Margins inverted.
Injury No.2 Lacerated punctured wound about 3 c.m. in diameter x cavity deep on right side of chest wall at scapular region posteriorly about 1 c.m. lacerated to injury No. 1. Margins inverted.
Injury No.3 lacerated punctured wound about 3 c.m. in diameter x cavity deep on left side of chest well at scapular region posteriorly. Margins inverted.
The Doctor after conducting post mortem, found scalp and vertebras were healthy, membrane brain and spinal cord healthy. On thorax region, he found posterior thorax wall ruptured on right and left sides third and fourth ribs were fracture, scapula fractured. Right and left pleurae and lungs were ruptured; pericardium and heart were found ruptured. On abdominal examination, he found that abdominal wall and peritoneum healthy, mouth esophagus and diagram healthy.
Stomach was healthy and containing food matter. Pancreas, liver spleen and kindness were healthy. Small and large intestines were healthy. Urinary bladder and genital organs were healthy.
From the internal as well as external examination of the deceased doctor was of the opinion that the death of deceased had occurred due to shock and hemorrhage as a result of injuries to right lung, left lung, heart and cardiac vessels, caused by fire arm. All the injuries were ante-mortem.
13. The prosecution also examined Allauddin PW 1, who deposed that on 25.4.2003 he was posted as Sub-Inspector at Police Station Moro. On that day about 2.00 a.m. (in the night) while he was available at the Police Station as incharge duty officer, complainant Ali Mohammad Korai appeared and disclosed that on that night he, his sons Manzoor and Ghulam Mustafa and relative Gulab were coming in a car along with the National Highway and when at about 12.30 a.m. (in the night) reached at the place known as Fourth Mile on the National Highway they noticed four police personnel who signaled them to stop. The car was being driven by his son Ghulam Mustafa and as they stopped the car few paces passed the said police officials, got infuriated and asked for reason of stopping the car ahead. Thereafter a fire heard which hit his son Manzoor who sustained the injuries. The complainant along with other occupants of the car immediately took him to Taluka Hospital Moro where he breathed his last and passed away and thus leaving others over his dead body he had appeared to report the incident. Since the narration given by the complainant made out a cognizable offence therefore, he recorded it in 154, Cr.P.C. book as Crime No.39 of 2003.
According to the complainant his son Ghulam Mustafa identified the police officials and thus he gave their names in the FIR as SIP Deedar Ali, HC Qurban Ali and PCs Todo Khan Dahri and Ali Gul Leghari. He further deposed that he read over the contents of the FIR to the complainant who accepted the same to be correct and put his signature on it and then he handed over its copy to Inspector Fateh Ali Lund the incharge of the Investigation Section of Police Station Moro who conducted the investigation. He also identified the signature of the complainant on the FIR as the complainant during the trial was expired. This, witness was - cross-examined but nothing favourable to the appellant comes in his evidence.
14. Prosecution in support of the case also examined Ghulam Mustafa as PW-2 being the eye- witness of the incident who deposed that complainant Ali Mohammad was his father. His father has recently expired on 12.3.2004. Deceased Manzoor Ali was his brother and PW Gulab is his relative. This incident took place on 24.3.2003, again says on 24.4.2003. He, his father Ali Mohammad, brother Manzoor and relative Gulab had gone to Nawabshah in a car. Thereafter they all the four were returning in the car from Nawabshah on the same day and when at about 12.30 a.m. of 25.4.2003 they reached at Fourth Mile from Moro town on the National Highway, we noticed a police vehicle parked by the side of the road where four police officials standing near there, He was driving the car at that time. The above said police officials suddenly hailed them to stop and as he applied the brakes the car came to halt few paces passed them. On this they were surrounded by the police officials who required the reason of stopping the car ahead of them. He deposed that they told them that they were the respectable residents of Moro town and the car was stopped for few paces bonafidly as it was in the speed. However, their explanation was not accepted by them and they express annoyance. They retraced few steps behind and then opened fires which smashed the back screen of the car and hit his brother Manzoor Ali who was sitting in the rear seat. His brother on sustaining the injury instantly went unconscious and the accused/police officials firing in so went and proceeded towards Moro town in their official vehicle.
He had identified all four of the accused on the light of their car to be SIP Deedar Ali Sahito who was empty handed, HC Qurban Ali Buler, PC Todo Khan Dahar and PC Ali Gul Leghari, who all were armed with official Kalashnikovs. In fact 2/3 fires were made by the accused persons but the one which hit my brother Manzoor Ali was made by HC Qurban Ali Buller. After this incident they caught a Datsun Pickup coming from. Shahpur Jahania side and they took them in the said pickup to Taluka Hospital Moro. However, the Medical Officer available on duty on examining his brother Manzoor Ali pronounced him dead. Then leaving him and Gulab over the dead body his father Ali Mohammad went to Police Station Moro to report the incident. Thereafter at. about 2.30 a.m (in the night) Inspector Fateh Ali Lund came to the Hospital and examined the dead body of his brother and after observing the legal formalities, formally referred it for the post mortem examination. The said police officer on the very night recorded his statement and also of PW Gulab at the hospital.
Thereafter the dead body was returned to them at about-400 a.m. On the following morning at about 6.30 a.m the above said police officer visited the place of incident on the showing of his father Ali Mohammad in their presence, and that of mashir Kadir Bux and Shandad. This witness was too cross-examined but nothing favourable to appellant is pointed out by the defence counsel.
15. After the evidence of above eye-witness, prosecution examined another eye-witness of the incident namely Gulab as PW-3 who deposed that he knew complainant Ali Mohammad and his son deceased Manzoor Ali and PW/Ghulam Mustafa. He deposed that on 24.4.2003 he had accompanied complainant Ali Mohammad, 'deceased Manzoor and PW Ghulam Mustafa to Nawabshah. After finishing the work as they were returning on the car driven by PW Ghulam Mustafa and when at about 2.30 a.m reached near Fourth Mile on the National Highway they noticed a police vehicle and four persons attired in police uniform standing there. They suddenly gave the signal to stop whereupon PW Ghulam Mustafa stopped the car but few paces ahead of the police officials. On this all the four police officials surrounded their car and used abusive language. Thereafter accused HC Qurban Ali Buler went back for few paces and fired a shot which hit his relative Manzoor Ali from his back side. As a result of which he went unconscious and the accused persons went towards Moro town in the official vehicle. The accused persons were identified by PW Ghulam Mustafa who gave their names to the complainant also to be Deedar Ali Sahito, Qurban Ali Buler Todo Khan Dahar and Ali Gul Leghari. Out of them accused Deedar had no weapon while the remaining three had the weapons. Thereafter they took Manzoor Ali to Taluka Hospital Moro where he was declared dead by the Medical Officer. Then leaving, them at hospital, complainant. Ali Mohammad went to report the incident to police. Thereafter police came around 2-00 a.m. and observed the legal formalities over the dead body. Police had recorded his statement on the very night at hospital. He was cross-examined at length but nothing favourable to appellant come in his evidence.
16. The prosecution also examined Mashir Qadir Dux as PW-4, who deposed that on 25.4.2003 Police saw the dead body of deceased Manzoor Ali in his present lying, at Civil Hospital Moro and prepared such mashirnama in his presence and co-mashir Shahzad Khan. He deposed that the Police also prepared inquest report of dead body of Manzoor Ali in . their presence. On 19.4.2003 Police visited the place of vardat in his presence on the pointation of complainant Ali Muhammad (now he is dead) the place of vardat was situated on the National Highway leading towards Karachi near forth mile. A car was passed near the road at the distance of 15 feets, Complainant disclosed that he along with his son Ghulam Mustafa, Manzoor Ali deceased and Gulab Korai were travelling. The car was parked from eastern side the National Highway road. The glass of backside door of driver side was in broken condition. The pieces of glasses were lying at place of vardat which was secured by police from place of vardat, One plaster paper used for glasses of black colour was secured by police from the place of vardat. Police recovered empty bullets of SMG Rifles from place of vardat on the Katcha space near the road. Such mashirnama was prepared by Sobedar Fateh Ali Lund of Investigation Team in their presence. On 25.4.2003 Police arrested accused SIP Deedar Ali Sahito, HC Qurban Ali Buler, PC Todo Khan, PC Ali Gul Leghari at the office of Investigation Team of Police Station Moro in their presence, Police secured a SMG from accused Qurban along with 27 bullets containing. a magazine one SMG along with 30 bullets from possession of accused PC Todo Khan, one SMG along with 30 bullets from possession of accused Ali Gul Leghari and nothing was secured from accused SIP Deedar Ali. Such mashirnama was prepared in his presence. The complainant All Mohammad produced blood-stained clothes of the deceased Manzoor Ali before the Police and such mashirnama was prepared in his presence and co-mashir was Shahzado Khan. He was cross-examined and I do not find any substantial contradiction to which the appellant be benefited.
17. The Tapedar Aijaz Hussain PW-7 was examined who deposed that on 19.2.20017 he was posted as Tapedar at Tapo Mari, Taluka Moro on that date he inspected the place of vardat of this case on the showing of one Ghulam Mustafa Korai, the son of complainant Ali Muhammad Korai and prepared such sketch which was situated in S.No.465/2 Deh Maari. However, the details of place of vardat he has given in the sketch.
18. The prosecution examined an important witness being the investigation officer namely Fateh Ali as PW-6, who deposed that on 25.4.2003 he was posted at P.S Moro in the investigation team, being Incharge of the same. On that day he received a copy of FIR bearing Cr.No.39/2003, under sections 302, 34, P.P.C. of P.S. Moro for the purpose of investigation. On that day, vide entry No.12, he left the P.S concerned along with subordinate staff and proceeded towards Taluka Hospital, Moro where the dead body of deceased Manzoor Ahmed son of Ali Muhammad by caste Korai was lying.
The complainant of this case namely Ali Muhammad shown the dead body of said deceased in presence of mashirs Qadir Bux and Shandad, where he prepared such mashirnama in presence of same mashirs as well as inquest report in the presence of mashirs. He further deposed that during the course of investigation, PWs Ghulam Mustafa son of Ali Muhammad Korai and Gulab Korai were examined by him under section 161 Cr.P.C, on 25.4.2003. The place of incident was also shown to him by the complainant in presence of mashirs namely Qadir Bux and Shandad on the same day at about 6.15 a.m he prepared such mashirnama on spot in presence of the same mashirs. The place of incident was located at National Highway near 4th Mile, where from three empties of 7.62 m.m were recovered as well as a car of Corolla Company bearing No.V-0093, Model 1986. He also collected blood stained earth from there, small pieces of glasses. Again says for the remaining items except small pieces, a mashirnama was prepared in presence of said mashirs. However, small pieces of glass were not in a position to keep in custody/secure. (Under same mashirnama, already lying on record at Ex. 10/C) After that, he brought the recovered case property at P.S. concerned, on the same day. On the same day at about 9.30 a.m accused persons namely ASI Deedar Ali; HC Ghulam Qadir, PC Todo Khan, PC Ali Gul voluntarily appeared at P.S. concerned, and at that time accused Ghulam Qadir produced SMG along with a magazine containing therein Accused Todo 27 live bullets, 30 bullets were provided/given to him but out of said 30, three were missing. Todo Khan produced a SMG along with its magazine, containing therein 30 bullets and PC Ali Gul produced SMG along with a magazine containing 30 bullets in presence of mashirs Shandad and Qadir Bux, Such mashirnama was papered by him in presence of same mashirs. The aforesaid weapons were sealed at the spot under said mashirnama and the same were sent to the Ballistic expert for examination and report. He deposed that during the course of investigation on 25.4.2003 HC Abdul Shakoor produced the clothes of deceased in presence of same mashirs which were secured under proper mashirnama. During the course of investigation, he also sent blood stained earth to the chemical examiner Rohri for its examination and report. During the course of investigation WPC Ali Nawaz of PS Moro as well as WHC Hidayatullah of PS Setharja were also examined by him under section 161, Cr.P.C. WPC Ali Nawaz while recording his statement under section 161 Cr.P.C. stated that he issued/gave 60 bullets along with a SMG to accused PC Todo Khan from 01.03.2003 to 25.4.2003. WHC Hidayatullah who recorded his statement under section 161, Cr.P.C. has stated that a SMG and 30 bullets were issued to accused Qurban Ali, one SMG and 90 bullets along with 3 magazines to accused Ali Gul while accused/SHO Deedar Ali was not issued any arms ammunition. The accused persons were also examined by him during the course of investigation/ interrogation and after completing usual investigation he submitted the challan before the concerned court of law. In the chief-examination he stated that "Before parting with my examination-in-chief I have to clear here and to mention here, that while recording my examination-in-chief I have named the accused Qurban to be accused Ghulam Qadir but in fact he is accused Qurban." The investigation officer was cross-examined but I do not find any material contradiction which creates any doubt in his evidence.
19. The evidence produced by the prosecution was reassessed and on reassessment of the entire evidence the important part of which discussed above and after hearing learned advocate for both the parties, I find that the prosecution has proved its case against the appellant for the offences charged beyond shadow of reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence.
20. The oral evidence given by the two eye-witnesses supported the case of prosecution, they specifically deposed that the appellant along with other co-accused persons caused firearm injuries to the deceased and the medical evidence is supportive to the oral evidence, as per medical evidence produced by the prosecution while examining the doctor who conducted the postmortem of the deceased, deceased received 03 separate firearm injuries and as per the opinion of the doctor all injuries were ante-mortem, All the witnesses denied direct enmity with, the appellant during their cross-examination and deposed that they have no enmity with the accused.
Although the complainant was not examined as the complainant during the trial passed away but his FIR was exhibited by the Allauddin PW-1 and he also stated that the contents of the FIR were read over to complainant who after accepting correct has signed on it. Besides the said PW the prosecution examined two other eyewitnesses who fully supported the case.
21. First Information Report of the present case was registered promptly. Incident took place on 25- 04-2003 at 12.30 in the night, FIR was registered on B the same day at 0200 hours and the postmortem of the deceased was conducted at 2-30 am on 25-04-2003, 'which exclude the possibility of consultation or deliberation on the part of the prosecution. It is also established from the evidence of the witnesses that after the incident complainant immediately went to the police station by leaving other two witnesses at hospital with the dead body, and after the FIR police along with the complainant came at the hospital and then at place of vardat.
Honourable Supreme Court in case of Farman Ali and another v. The State and another (2020 SCMR 597), has held as under:--
4. We have heard the learned counsel for the petitioner Farman Ali in Criminal Petition No.29-P/ 2012 and persued the whole record in Jail Petition No.76/2012, preferred by Amjad Ali co-convict of Farman Ali and observed that in this case the occurrence took place at about 5.15 p.m. the Police after coming to known about the occurrence arrived in the Emergency Department of the Hospital where Muhammad Askar Khan, Complainant/PW reported the matter: The postmortem was conducted on the same day after about one hour of the occurrence. In the FIR, it is specifically mentioned that the petitioners Farman Ali and Amjad Ali along with Malik Alam (P.O.) fired at the deceased Muhammad Ajmal Khan. Due to their firing, the deceased received fire shots and succumbed to tie injures. The names of the eye-witnesses have specifically been mentioned in the FIR. In this case, the matter was promptly reported to the police and the postmortem was also conducted promptly, which exclude the possibility of consultation or deliberation on the part of the prosecution.
22. The contention of the learned counsel for the appellant that the witnesses are relative to the deceased and are interested, therefore, their evidence cannot be relied upon has no force as although the witnesses are relative to the complainant and the deceased but they have no enmity with the appellant to involve him in the murder case. However, the evidence produced by the prosecution is reliable, trustworthy and confidence inspiring which was supported by the medical evidence as discussed above. In the case of Nasir Iqbal alias Nasra and another v. The State (2016 SCMR 2152) Honourable Supreme Court has held as under:-- "In the above circumstances, we found that the ocular evidence furnished by the eye-witnesses to be credit worthy and confidence inspiring and we have not been able to observe any defect or material lacunas in their evidence; their presence at the spot had been established beyond any shadow of doubt; both the eye-witnesses were of course closely related to the deceased but fact of the matter remains that their mere relationship would not render them to be interested or partisan witnesses when the same has been corroborated with the medical evidence as well as the recoveries of crime weapon and the motive has fully been proved as such in our view no interference is required in conviction of the appellants."
In the case of Lai Khan v. State (2006 SCMR 1846), Hon'ble Supreme Court has held as under:-- ... The mere fact that a witness is closely related to the accused or deceased or he is not related to either party, is not a sole criteria to judge his independence or to accept or reject his testimony rather the true test is whether the evidence of a witness is probable and consistent with the circumstances of the case or not.
23. The contentions in respect of the fact that the empties recovered from the place of incident and the positive FSL was not put the appellant in his statement recorded under section 342, Cr.P.C. are not to be used against him nor does the same is to be taken into consideration for awarding conviction have some weight in view of the case of Muhammad Shah v. The State (2010 SCMR 1009) However in the present case if the recovery of these three empties along with the positive FSL be discarded even then there is sufficient/ strong evidence against the appellant which connect the appellant with the commission of offence. The presence of the appellant at the place of vardat on his official duty has not been denied. The issuance of SMG to him along with 30 rounds has not been denied and depositing only 27 rounds out of 30 has also not been denied by the appellant during the investigation so also at the time of trial.
24. During arguments learned counsel for the appellant pointed out some minor contradictions and discrepancies in the evidence of witnesses which in my view are not sufficient to hold that the case of prosecution is doubtful. It is settled by now that, where in the evidence, prosecution established its case beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence supported by other viz medical and circumstantial evidence then if there may some minor contradictions which always are available in each and every case such may be ignored, as has been held by Honourable Supreme Court in case of Zakir Khan v. The State (1995 SCMR 793). Relevant paragraph is reproduced as under:-- "13. The evidence recorded in the case further indicates that all the prosecution witnesses have fully supported each other on all material points. However, emphasis has been laid by Mr. Motiani upon the improvements which can be found by him in their respective statements made before the Court and some minor contradictions in their evidence were also pointed out. A contradiction, unlike an omission, is an inconsistency between the earlier version of a witness and his subsequent version before the Court. The rule is now well established that only material contradictions are to be taken into consideration by the Court while minor discrepancies found in the evidence of witnesses, which generally occur, are to be overlooked. There is also a tendency on the part of witnesses in this country to overstate a fact or to make improvements in their depositions before the Court. But a mere omission by witness to disclose a certain fact to the Investigating Officer would not render his testimony unreliable unless the improvement made by the witness white giving evidence before the Court has sufficient probative force to bring home the guilt to the accused."
25. A police constable, if he commits crime while in uniform, is probably the most dangerous criminal that a society can face. When wardens become poachers, the game would certainly cease to exist. In the present case a police official without any reason has committed the, murder only on the annoyance that the car was not stopped at the place where police was standing and was stopped few paces away from them. What more act of a hardened criminal could be there than such an act and that too by police personal. Thus based on the discussion made hereinabove, I am of the considered view that the prosecution has proved its case beyond a reasonable doubt against the appellant by producing reliable, trustworthy, and confidence- inspiring oral evidence as well as medical evidence so also the documentary evidence in support of the same. I, therefore, uphold all the sentences, fines, and penalties for each offence in the judgment whilst dismissing the appeal.
26. The appellant was released on bail by this court by allowing application under section 426, Cr.P.C., vide order dated 02-01-2013, and since his appeal is now dismissed, therefore, the SSP 'Naushahro Feroze is directed to arrest the appellant and send him to the Central Prison Sukkur for serving out his remaining sentences as per the judgment of the trial court. The SSP Naushahro Feroze shall submit compliance report within 15 days through Additional Registrar of this court.