ZULFIQAR ALI SANGI, J.-- This criminal appeal is directed against the judgment dated 31.10.2018, passed by learned Sessions Judge, Jamshoro, in Sessions Case No.339 of 2013 (Re: The State v.
Muhammad Qasim and others), emanating from Crime No.76 of 2013, registered at Police Station Schwan, under sections 302, 324, 504, 147, 148, 149,114, 337-A(i), 337-F(vi), P.P.C., whereby the learned trial court in the concluding para has held as under: "All the accused in prosecution of their common object, in pre-planned manner intercepted the car, made aerial firing, surrounded the car and brutally beaten five PWs, out of whom two have lost their lives subsequently. Therefore, in these mitigating circumstances, all accused are found guilty of following offences. Under sections 302(b)/ 149. P.P.C.For committing Qatl-i-Amd of deceased Photo Mallah Under sections 302(b)/ 149, P.P.C.For committing Qatl-i-Amd of deceased Ghulam Muhammad Under sections 324/149, P.P.C.Attempted to commit Qatl-i-amd of injured Gul Mohammad and Ghulam Hyder and in addition of that caused injuries to them.
Under sections 337- L(ii)/ 149, P.P.C.For causing six injuries to injured Gul Mohammad Under sections 337- A(i)/ 149, P.P.C.For causing one injury to injured Gul Mohammad and one injury to injured Ghulam Hyder Under sections 337- F(vi)/ 149, P.P.C.For causing injury to injured Ghulam Hyder Under sections 504/149, P.P.C.For using abusive language Under sections 337- H(ii)/ 149, P.P.C.For aerial firing rashly or negligently as to endanger human life Under sections 147/149, P.P.C.For unlawful assembly Under sections 148/149, P.P.C.For rioting I therefore convict all the accused under Section 265-H(ii), Cr.P.C. in above - mentioned offences and sentence all accused as under:- Under sections 302(b)/149, P.P.C.Life imprisonment as Tazeer for causing Qatl-i-Amd of deceased Photo Mallah Under sections 302(b)/149, P.P.C.Life imprisonment as Tazeer for causing Qatl-i-Amd of deceased Ghulam Mohammad Under sections 324/149, P.P.C.R.I. for five years with fine of Rs.5000/- for- each accused and in default, each accused shall further undergo S.I. for four months.
Under sections 337- L(ii)/ 149, P.P.C.R.I. for one year for the injury on the person of injured Gul Mohammad on his right fore-arm Under sections 337- L(ii)/ 149, P.P.C.R.I for one year for the injury on the person of injured Gul Mohammad on his right lower leg under sections 337- L(ii)/ 149, P.P.C.R.I for one year for the injury on the person of injured Gul Mohammad on his right foot Under sections 337- L(ii)/ 149, P.P.C.R.I for one year for the injury on the person or injured Gul Mohammad on his right chest Under sections 337- L(ii)/ 149, P.P.C.R.I for one year for the injury on the person of injured Gul Mohammad on his left upper arm Under sections 337- L(ii)/ 149, P.P.C.R.I for one year for the injury on the person of injured Gul Mohammad on his left side of chest Under sections 337- A(i)/ 149, P.P.C.R.I for one year and Daman Rs.5000/- to be paid to injured Gul Mohammad by the accused Under sections 337- A(i)/ 149, P.P.C.R.I for one year and Daman Rs.5000/- to be paid to injured Ghulam Hyder by the accused Under sections 337- F(vi)/ 149, P.P.C.R.I for two years as Tazeer and to pay daman Rs.10000/- to injured Ghulam Hyder Under sections 504/149, P.P.C.R.I. for six months Under sections 337- H(ii)/ 149, P.P.C.R.I for three months Under sections 147/149, P.P.C.R.I for six months Under sections 148/149, P.P.C.R.I for six months All the above sentences of R.Is. shall run concurrently and accused are extended benefit of Section 382-B, P.P.C. for the period which they have remained in jail as UTPs and same period be deducted from R.Is awarded to accused persons. Accused (1) Mohammad Essa and (2) Soomar are produced in custody they be remanded back to jail, while accused (1) Mohammad Qasim (2)
Mohammad Hashim (3) Azizullah and (4) Ali Gohar are present on bail, their bail bonds stand cancelled and sureties discharged and they. are taken into custody and remanded to jail with directions to serve out sentence with directions to Superintendent of Jail to compute UTP period of accused and deduct same from R.I awarded to them.The case against proclaimed offenders (1)
Zulfiqar Ali (2) Mumtaz Ali and (3) Qadir Bux be kept on dormant file till they are arrested or surrender and there would be no property order."
2. The brief facts of the prosecution case are that on 13-07-2013, at 2345 hours, complainant Gul Mohammad Mallah lodged FIR at P.S. Sehwan, stating therein that they have old enmity with Qasim Bozdar party. On 12-07-2013, he along with his brother Haji Ghulam Mohammad, nephew Ghulam Akbar, brother-in-law Photo Khan and maternal nephew Ghulam Hyder left their village Akatar in a Car for Sehwan Court and when at 8.30 a.m., reached near Ghulam Qadir Bhalai landhi, accused Mohammad Qasim and Mohammad Hashim with Kalashnikov rifles, Zulfiqar Ali with iron bar, Mumtaz Ali with danda, Qadir Bux and Soomar with iron rods, Azizullah, Mohammad Essa and 4/5 unidentified accused with dandas, all by caste Bozdar were found standing thee. Out of them,.
Mohammad Qasim and Mohammad Hashim on seeing their car, fired in the air, hence they stopped the car and all the accused encircled their car. Accused forced them to alight from the car and started abusing. Accused Mohammad Qasim instigated others to kill Photo Mallah, who has used ill words towards them, to which accused Zulfiqar and Qadir Bux caused iron rod blows to Photo Mallah on his head, arms, legs, back of chest and other parts of the body with intention to kill him and he while crying fell down on the ground. Accused Mumtaz Ali and Soomar caused danda and iron rod blows to him and Ghulam Mohammad on heads, legs, arms, back of chests and other parts of bodies with intention to kill them. Accused Azizullah, Mohammad Essa and 4/5 unidentified accused caused danda blows to Ghulam Akbar and Ghulam Hyder on their heads, arms, legs, back of chests and other parts of their bodies with intention to kill. them. Accused Mohammad Qasim and Mohammad Hashim caused butt blows of Kalashnikov to him and Ghulam Mohammad on heads. On their cries people of vicinity came there, who rescued them and then accused by issuing threats and firing in the air went away. They saw that blood was oozing from their injuries.
They arranged the conveyance and came at P.S. Sehwan and after obtaining refer letter there from, came to Taluka Hospital, Sehwan where from they all were referred to Civil Hospital, Hyderabad. During treatment on 13-07-2013 at 2.00 p.m his brother-in-law Photo Khan succumbed to the injuries and his dead body was brought at Taluka Hospital, Sehwan where postmortem on its dead body was conducted. Thereafter he lodged FIR at P.S.
3. After the investigation, the case was challaned and case papers were supplied to the appellants.
The charge against them was framed at Ex.04, to which they pleaded not guilty and claimed to be tried. Some of the accused have absconded away but later they joined the trial and amended charge against all accused namely (1) Ali Gohar (2) Mohammad Essa, (3) Mohammad Soomar (4)
Mohammad Qasim (5) Mohammad Hashim and (6) Azizullah was framed at Ex.11, to which they all pleaded not guilty and claimed to be tried vide their pleas at Exs.12 to 17 respectively.
4. The prosecution in order to prove its case examined PW-1 complainant Gul Mohammad Mallah at Ex.18, who produced FIR at Ex.18/A, PW-2 injured Ghulam Akbar Mallah at Ex.19, PW-3 Dr. Ghulam Rasool Daudpoto at Ex.21, who produced police letter at Ex.21 /A, provisional medical certificate of injured/ deceased Ghulam Mohammad at Ex.21/B, provisional medical certificate of injured/ deceased Photo at Ex.21/C, provisional and final medical certificates of injured Ghulam Hyder at Ex:21/D and 21/E respectively, provisional and final medical certificates of injured Gul Mohammad at Exs.21/F and 21/G respectively, police letter for conducting postmortem on the dead body of deceased photo Khan at Ex.21/H, inquest report at Ex.21/I, postmortem report of deceased Photo at Ex.21/J, PW-4 Dr. Mohammad Juman Memon at Ex.22, who produced police letter at Ex.22/A, inquest report at Ex.22/B, postmortem report of deceased Ghulam Mohammad at Ex.22/C, receipt of handing over dead body at Ex.22/D,PW-5 Tapedar Mohammad Juman at Ex.24, who produced four copies of sketches at Ex.24/A to 24/D respectively,PW-6 mashir Mevo Khan Mallah at Ex.25, who produced memo of injuries at Ex.25/A, inquest report at Ex.25/B, dead body examination form at Ex.25/C, memo of clothes at Ex.25/D, memo of inspection of wardat at Ex.25/E, memo of arrest of accused at Ex.25/F, memo of recovery at Ex.25/G, dead body examination forms at Exs.25/H and 25/I, memo of recovery of clothes of deceased Ghulam Mohammad at Ex.25/J, PW-7 Investigation Officer ASI Altaf Hussain Mangi at Ex.26 receipt of handing over dead body of deceased Photo at Ex.26/A, entry No.27 at Ex.26/B, letter to the chemical examiner at Ex.26/C, chemical report at Ex.26/D, receipt of handing over dead body of deceased Ghulam Mohammdd at Ex.26/E, letter addressed to the Chemical Examiner at Ex.26/F, and chemical report at Ex.26/G. Thereafter, learned incharge DPP for the State closed its side, vide statement at Ex.27.
5. Subsequently, counsel for appellants filed an application Under Section 540, Cr.P.C. for calling Administrators of Agha Khan Hospital and Ziauddin Hospital Karachi along with medical record of deceased Ghulam Mohammad for their examination as court witnesses, which was dismissed by the trial Court, vide order dated 18-08-2016, that order was assailed by accused before this Court in Criminal Revision Application No.S-153/2016 and this court vide order dated 18-11-2016 set-aside the impugned order of the trial Court dated 18-08-2016 and directed for issuance of summon to the witnesses mentioned in application along with relevant record and examine them as Court witnesses.
6. Court Witness-1 Dr. Syed Mohammad Baqi of Agha Khan Hospital, Karachi was examined at Ex.28, who produced complete file of patient/ deceased Ghulam Mohammad at Ex.28/A. The Court witness-2 Dr. Abdul Ghani of Ziauddin Hospital, Karachi was examined at Ex.29, who produced original file of patient/ deceased Ghulam Mohammad at Ex.29/A.
7. The statements of accused were recorded under Section 342, Cr.P.C. at Exs.30 to 35 respectively, in which they all denied the allegations of prosecution and stated that they were involved due to enmity with Abdullah Shah and his son Murad Ali Shah. Learned trial court after hearing the parties and examining the evidence available on record convicted and sentenced the appellant as stated above.
8. Mr. Mehmood Alam Rizvi, Learned counsel for the appellants has contended that the appellants are innocent, who have been falsely involved by the complainant due to political rivalry, which is evident from the contents of the FIR; that there is inordinate delay of more than 39 hours in lodging of FIR, which has not been explained properly; that there is also 11 days delay in recording statements of witnesses under section 161, Cr.P.C. that all the eye-witnesses are closely relatives to each other and no person from the vicinity has been taken as witness or mashir; that there are major contradictions in between evidence of the prosecution witnesses, which makes the case of prosecution doubtful; that though as per prosecution story, appellants Muhammad Qasim and Muhammad Hashim were armed with KKs but surprisingly they did not use the KKs against the deceased and PWs which also casts dent in the prosecution story; that the car of the complainant party in which they were travelling when they were attacked by the appellants, was neither examined by the I.O., nor the same was produced before the trial court to show that any damage was caused to it from the weapons of the appellants; that actually it was a road accident case but complainant party with the league of police converted it into present case by manipulating a false story, which is also evident from the evidence of PW-3, who in his deposition has stated that multiple injuries of such nature can be caused in a road traffic accident; that there is no iota of evidence against the appellants to connect them with the alleged offence; that in the given circumstances the prosecution story totally appears to be false and managed one and prosecution has failed to establish its case, therefore, this appeal be allowed and the appellants be acquitted of the charge. In support of his contentions, learned counsel for the appellants placed reliance on the cases of Zafar v. The State and others (2018 SCMR 326), Muhammad Asif v. The State (2017 SCMR 486), Muhammad Nawaz v. The State (2016 PCr.LJ Note 72), Muhammad Javed and another v. The State and another (2019 YLR Note 1), Rahat Ali v. The State (2010 SCMR 584), Muhammaddullah and another v. The State through Additional Advocate General and another (2018 PCr.LJ 1633), Allah Bakhsh v. Station House Officer and another (2013 MLD 885), Muhammad Ishaque and another v. The State (1997 SCMR 596), Aurangzeb v. The State through Advocate General (2008 PSC (Crl) 965), Haroon Shafique v. The State and others (2018 SCMR 2118), Said Wahab v. The State through Additional Advocate General and 3 others (2018 YLR 2398), Bagh Ali v. Muhammad Anwar and another (1983 SCMR 1292), Saeedullah Khan v. The State (1986 SCMR 1027), Mir Muhammad v. The State (1995 SCMR 610), Sikandar v. The State (PLD 2004 Karachi 644), Imran Ashraf and 7 others v. The State (2001 SCMR 424), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Altaf Hussain v. Fakhar Hussain and another (2008 SCMR 1103), Muhammad Ryas v. The State (1997 SCMR 25), Wali Muhammad v. Nawab and others (1984 SCMR 914), Riaz Masih alias Mithoo v. The State (1995 SCMR 1730), Mehmood Ahmad and 3 others v. The State and another (1995 SCMR 127), Mehar Ali and others v. The State (1968 SCMR 161), Khurshed v. The State (PLD 1996 SC 305), Muhammad Iqbal and others v. Muhammad Akram and another (1996 SCMR 908), Muhammad Ahmad and another v. The State and others (1997 SCMR 89), Khan Muhammad Mahar v. The State (2003 SCMR 22), Khalid Mehmood Butt v.
Rauf Ahmed Qureshi (2008 SCMR 660) Peer Mukaram-ul-Haq v. National Accountability Bureau
(NAB) through Chairman and others (2006 SCMR 1225), Khan Asfandyar Wali and others v.
Federation of Pakistan through Cabinet Division, Islamabad and others (PLD 2001 Supreme Court 607); Mazhar Ahmed v. The State and another (2012 SCMR 997), Abdul Hameed v.
Muhammad Abdullah and others (1999 SCMR 2589), Alamgir Khalid Chughtai v. The State (PLD 2009 Lahore 254), Muhammad Shahid Sahil v. The State and another (PLD 2010 FSC 215), Saifal v.
The State (2013 PCr.LJ 1082), Ammar Yasir Ali v. The State (2013 PCr.LJ 783), Muhammad Rizwan Ahmed and others v.The State (2016 PCr.LJ 1371), Babar Ahmad v. The State (2017 YLR 153), Shoaib Ahmed and others v. The State and others (2019 PCr.LJ 57), Ulfat Hussain v. The State (2018 SCMR 313) and Khan Muhammad Mahar v. The State (2003 SCMR 22).
9. On the other hand, learned counsel for the complainant has contended that the delay in lodging of FIR has been fully explained by the complainant; that the medical evidence is in consonance with the ocular evidence; that there is no material contradictions in the evidence of prosecution witnesses and the contradiction if any, is immaterial and minor in nature, which could be occurred due to passage of time and would safely be ignored; 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 appellants failed to substantiate defence plea taken by them by producing any sufficient cogent evidence; while the prosecution has proved its case against the appellants% beyond reasonable shadow of doubt. He, therefore, prayed for dismissal of instant Criminal Appeal. In support of his contentions learned counsel for the complainant placed his reliance on the cases of Muhammad Nadeem alias Deemi v. The State (2011 SCMR 872), Nadir Shah v. The State (2009 SCMR 565), Naseer Ahmed v. The State (2003 SCMR 350), Muhammad Mushtaque v. The State (PLD 2001 SC 107), Khadim Hussain v. The State (PLD 2010 SC 669), Khurshid Ahmad v. Kabool Ahmed and others (PLD 1964 (W.P.)
Karachi 356), Asif Jameel and others v. The State (2003 MLD 676), Shawar Gul and others v. The State and another (2006 PCr.LJ 284), Saeed and 2 others v. The State (2003 SCMR 747), Muhammad Ahmed (Mahmood Ahmed) and anther v. The State (2010 SCMR 660), Muhammad Ahmad and another v. The State and others (1997 SCMR 89), Farmanullah v. Qadeem Khan and another (2001 SCMR 1474), Achar alias Bhai Khan and another v. The State (2003 PCr.LJ 232), Nawab Khan alias Dahkhan and others v. The State and others (2015 PCr.LJ 539), Muhammad Bashir v. Station House Officer Okara Cantt and others (PLD 2007 SC 539), Muhammad Ashraf Khan Tareen and another v. The State and another (1996 SCMR 1747), Aftab Ahmed v. Hassan Arshad and 10 others (PLD 1987 SC 13), Shahnawaz and others v. The State (PLD 1959 (W.P.)
Karachi 383), Abdullah Khan (deceased) through his legal representative v. Government of Sindh and another (1986 MLD 1500), Muhammad Ashraf v. Shah Noor Khan and another (1996 MLD 1819), Mst. Maryam Mirza v. M.M.Kazi and 2 others (1988 MLD 1651) and Muhammad Pervez and others v. The State and others (2007 SCMR 670).
10. Ms. Sana Memon learned A.P.G Sindh after going through the entire evidence of prosecution witnesses as well as other record of the case has supported the impugned judgment.
11. I have heard learned counsel for the appellants, learned APG for the state and learned counsel for the complainant and perused the materials available on record with their able assistance.
12. On reassessm ent of the entire evidence produced by the prosecution, I am of the view that the prosecution has proved its case against the appellants beyond any reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence, ocular as well as medical evidence including the circumstantial and other supportive evidence.
The main prosecution witnesses gave their evidence as under:-
13. The prosecution examined P.W. 1 Gul Muhammad (complainant/ Eye-witness) who deposed that the incident took place on 12.07.2013. On the day of incident at 8.30 a.m. morning, he along with his brother Ghulam Muhammad, nephew Ghulam Akbar, brother-in-law Photo Khan and maternal nephew Ghulam Hyder left their village boarding in a car for visiting Sehwan Court and when reached at Ghulam Qadir Bhalali Landhi, they saw accused Muhammad Qasim armed with Kalashnikov, Muhammad Hashim armed with Kalashnikov, Zulfiqar armed with iron rod, Mumtaz armed with danda, Azizullah armed with danda, Muhammad Essa armed with danda and 4 unknown persons, they encircled their vehicle. They got down them from the car and on the instigation of accused. Muhammad Qasim, accused Zulfiqar and Qadir Bux caused iron rod blows to Photo Mallah at arms, legs, head and other parts of the body, who on sustaining injury fell down on the ground. Accused Muhammad Soomar and Mumtaz caused iron rod blows to him and his brother Ghulam Muhammad at arms, legs and heads, they also fell down. Accused Muhammad Essa and Azizullah caused blows to Ghulam Hyder and Ghulam Akbar. Accused Muhammad Qasim and Muhammad Hashim caused butt blows of Kalashnikov to him on his head and his brother Ghulam Muhammad. They raised cries, which attracted to the local people, who after taking the name of "Almighty Allah" saved them. Thereafter, accused Muhammad Qasim Bozdar told that if they made complaint against him, they will not be spared. He then saw that their peoples were lying injured and blood was oozing from the injuries. Photo Mallah was serious. He arranged another vehicle and shifted the injured to PS Sehwan. Police referred them to Taluka Hospital, Sehwan. The doctors of Taluka Hospital Sehwan after seeing them in serious condition referred them to Civil Hospital Hyderabad. He further deposed that on the 2nd day at 12 noon, Photo Mallah succumbed to injuries and died in hospital, and he also got first aid then they brought the dead body to Taluka Hospital Sehwan. After hearing about the death of deceased, Photo Mallah, police also came at Taluka Hospital Sehwan. Post-mortem of the dead body was conducted there. At about 10.30 p.m., the dead body was handed over, to them, which was brought at village by Muhammad Umar and others. After sending dead body, he along with Mevo and Ghulam Nabi went to police station Sehwan where he lodged FIR at 11.45 8 p.m. He further deposed that on the next day, ASI Altaf Mangi came at the place of incident shown by him and he inspected the place of incident and prepared such memo. This witness was cross-examined at length but I could not find any material substance favourable to the appellants.
14. Prosecution examined P.W.-2 Ghulam Akbar (Eye-witness), who deposed that this incident took place on 12.07.2013. On that day, date was fixed before the Court at Sehwan and he along with his father Ghulam Muhammad, uncle Gul Muhammad, Photo Mallah and Ghulam Hyder left house in their car for attending the Court at about 8.30 a.m. When they reached at Ghulam Qadir Landhi, they saw there Muhammad Qasim, Muhammad Hashim armed with Kalashnikovs, Zulfiqar, Qadir Bux Soomar, armed with iron rods while Azizullah, Essa and Mumtaz having dandas and 4/5 unknown persons. Accused Muhammad Qasim and Muhammad Hashim made fires from Kalashnikovs in the air and due to fear they stopped their vehicles. All the accused encircled their car and forcibly pull out them from the car and abused them. On instigation of Muhammad Qasim, accused Zulfiqar and Qadir Bux caused iron rod blows on the head of Photo Mallah, who fell down on the ground then they caused injuries to his other parts of the body. Mumtaz and Soomar caused injuries with danda and iron rod blows to his father Ghulam Muhammad and uncle Gul Muhammad. Azizullah, Essa and 4/5 unknown persons caused injuries to him and Ghulam Hyder with intent to kill them. Accused Muhammad Qasim and Muhammad Hashim caused butt blow of Kalashnikov to his father. Ghulam Muhammad and uncle Gul Muhammad on their heads. He further deposed that they raised cries, which attracted to the local peoples, who gave the name of "Almighty Allah" and saved them. Accused Muhammad Qasim told that if they will make any complaint against them, they will kill them. Accused after firing in the air and abusing went away.
They saw that blood was oozing from their injuries as well as injuries of Photo Mallah. They arranged for conveyance and came at P.S. Sehwan. Police gave a letter for Civil Hospital, Sehwan.
They reached at Sehwan Hospital where the doctors seeing their serious condition referred them to civil hospital Hyderabad. Photo was serious, he was taken to emergency. The doctors gave them treatment. On the. next day on 13.7.2013 Photo Mallah succumbed to injuries and died in hospital.
His uncle and others took dead body of Photo Mallah and brought to Sehwan for postmortem. He further deposed that his father Ghulam Muhammad was unconscious due to injuries hence he remained with him in hospital at Hyderabad. Thereafter my uncle Gul Muhammad lodged FIR with police. On 23.7.2013, he went to Police Station, where ASI Altaf recorded his statement. He was cross- examined but learned counsel was unable to point out any material contradiction which creates any doubt in the case of prosecution.
15. The prosecution examined P.W-7 Mevo Khan (Mashir) who deposed that on 12.07.2013 at 10.00 a.m. police noted injuries on the persons of injured Ghulam Muhammad, Photo Khan, Ghulam Akbar, Ghulam Hyder and Gul Muhammad in Taluka Hospital, Sehwan. Police prepared such mashirnama of injuries in their presence. The co-mashir was Ghulam Nabi. On 13.07.2013 at 9.0 p.m. police inspected the dead body of deceased Photo at Taluka Hospital, Sehwan and prepared inquest report and dead body examination form. He depbsed that on the same date at 10.30 p.m, police secured clothes of deceased in their presence and prepared such memo. The co-mashir was same. On 14.7.2013 at about 7.00 or 7.1 5 a.m. police inspected place of incident, which was situated at link road at Ghulam Qadir Bhalai stop and prepared such memo in their presence.
Police also secured the bloodstained earth and 10 empties of Kalashnikov in their presence. The co- mashir was same. He further deposed that on the same date police called them from their houses and took them by saying that they had information about the accused. Thereafter police arrested accused Soomar and Muhammad Essa at 3.00 or 3.15 p.m. and prepared such memo in their presence. The co-mashir was same. On 25.07.2013 police came at their house and took both the mashirs stating that accused had volunteered to point out crime weapons. Police took them to P.S. Sehwan. There from police took accused Esso and Soomar and hired a private vehicle and also took them, on reaching at Qasim bricklin where small room was built, accused Soomar led police to the room and produced iron rod before the police, which was bloodstained and police secured the same. Thereafter accused Esso also led the police to a small room where he produced the lathi, which was also bloodstained and police secured the same. Police prepared such memo of recovery at about 4.45 p.m. or 5.00 p.m. On the next day, at night time, brother of injured Ghulam Muhammad informed them that Ghulam Muhammad has been died and his dead body has been brought at Taluka hospital Sehwan, they should reach there. Police inspected the dead body and prepared inquest report and dead body examination form at about 12.00 p.m. Thereafter dead body was taken for post-mortem. After 2 hours, police secured clothes of deceased Ghulam Muhammad and prepared such memo at about 12.10 or 2.15 a.m. and obtained their signatures.
This witness was also cross- examined at length but the defence counsel could not point out any material contradiction which suggests false involvement of the appellants in the present case.
16. The prosecution also examined the PW-8 Altaf Hussain (Author of FIR and Investigation Officer), who deposed that on 12.07.2013 he was posted at P.S. Sehwan. On that date, he was present at P.S. Sehwan as duty officer, when at about 10.00 a.m. Gul Muhammad Mallah brought injured Ghulam Muhammad Mallah, Photo Khan Mallah, Ghulam Akbar Mallah and Ghulam Hyder Mallah at P.S. Gul Muhammad Mallah disclosed that they were coming to attend the court and when reached near the landhi of Qadir Bux Bhalai, Qasim Bozdar and others attacked upon them and made them injured, hence they may be given letter for examination, treatment and certificates. He issued such letter to the medical officer for medical treatment and certificates to the injured. He deposed that he noted injuries on the persons of all these injured and prepared such mashirnama of injuries in presence of mashirs Ghulam Nabi and Mevo Khan Mallah at 10.00 a.m. He deposed that on 13.07.2013, at 2100 hours, Ghulam Muhammad Mallah informed him on mobile phone that Photo Mallah has been died and they have brought the dead body at Taluka Hospital Sehwan, he then proceeded to Taluka Hospital Sehwan where he inspected dead body of deceased Photo Mallah.
The dead body was lying on stretcher, he prepared memo of examination of dead body in presence of same mashirs Mevo and Ghulam Nabi at 2100 hours, as well as, prepared inquest report at the same time in presence of same mashirs. He further deposed that he then gave letter to the doctor along with copies of memo of inspection of dead body and inquest support for conducting post-mortem. After 15-20 minutes, the medical officer returned the dead body after conducting post-mortem, which he handed over to the son of deceased Photo namely Muhammad Umar under receipt. He further deposed that on the same date i.e. 13.07.2013, complainant Gul Muhammad Mallah, came at PS at 2230 hours, produced clothes of deceased Photo Mallah, which he secured in presence of same mashirs and prepared such memo. On the same date at 2345 hours, complainant Gul Muhammad Mallah came at PS and disclosed the facts of this incident, which were of cognizable offence, he made such entry bearing No.27 at 2345 hours in daily diary, and lodged FIR, which he recorded in 154, Cr.P.C, book on his verbatim and read over to him and obtained his signature. He deposed that on 14.7.2013 at 7.10 a.m., he inspected place of incident shown by 'complainant Gul Muhammad Mallah, situated near Qadir Bux Bhalai Landhi, in presence of same mashirs and secured 10 empties of Kaldshnikov from the place of incident which were sealed on spot. He also secured the bloodstained, earth, which he sealed in the tin box on spot. He prepared mashirnama of inspection of place of incident at 7.10 a.m. in presence of same mashirs, on 17.07.2013 he sent clothes of deceased and bloodstained earth to chemical Examiner for analyses through PC Aijaz Ali and later on chemical report was received at PS. On 14.07.2013 at 1530 hours, he arrested accused Muhammad Soomar and Muhammad Essa from BhaliaMorr (curve) and prepared such memo in presence of same mashirs. On 23.07.2013, he recorded statements of PWs/injured Ghulam Akbar and Ghulam Hyder under Section 161, Cr.P.C. at PS. On 22.07.2013, he issued letter to Mukhtiarkar for preparation of sketch of venue of incident. On 25.07.2013, he interrogated accused Muhammad Essa and Muhammad Soomar, who admitted their guilt and volunteered to produce the weapons used in the crime: On the same date, he took the accused, staff and both mashirs Mevo and Ghulam Nabi, when reached at Bhalai More (curve) stop, accused asked them to stop the vehicle and then accused led them to the bricklin. There was a room, accused led them inside the room from where they taking out one lathi and one iron rod handed over to him, which he secured at 1530 hours under mashirnama in presence of same mashirs. Muhammad Soomar produced a lathi, while Muhammad Essa produced iron rod, he sealed both the articles on the spot in presence of mashirs. He then brought the accused and property at PS. On 27.07.2013 complainant Gul Muhammad informed him on mobile phone that his brother Ghulam Muhammad has been died and they have brought the dead body at Taluka Hospital Sehwan, he then reached at the hospital, where he inspected dead body of deceased Ghulam Muhammad and prepared memo of examination of dead body and inquest report in presence of same mashirs Mevo and Ghulam Nabi at 1230 hours. He gave letter to the medical officer along with dead body examination form and inquest report for conducting post-mortem.
After conducting post-mortem the dead body of deceased Ghulam Muhammad was given to him, which he handed over to Ghulam Akbar the son of deceased and obtained such receipt. The complainant produced clothes of deceased Ghulam Muhammad, which he secured in presence of same mashirs and prepared such memo. On 02.08.2013, he sent clothes of deceased Ghulam Muhammad to the Chemical Examiner for analysis and such chemical report was received. After completing the investigation, he submitted challan in the court of law.
17. The prosecution also examined P.W-6 Muhammad Juman the Tapedar, to confirm the place of wardat, who deposed that he was directed by the Mukhtiarkar Taluka Sehwan to visit the place of incident and prepared sketch. On 18.07.2013, he visited the place of incident shown by complainant Gul Muhammad and ASI Altaf Hussain Mangi. The place of incident was situated on link road leading towards village Akhtar. He prepared sketch of place of incident on instructions of Complainant Gul Muhammad and ASI Altaf Hussain Mangi and took measurements of points shown in the sketch with the tape and have mentioned the same correctly. He also exhibited the sketch prepared by him.
18. The prosecution in order to support the direct and circumstantial evidence produced medical evidence and examined P.W-3 Dr. Ghulam Rasool, who deposed that on 12.07.2013, he was posted as Chief Medical Officer at Taluka Hospital, Sehwan. On that date, one ASI. of P.S. Sehwan referred five injured persons for their medical examination, treatment and certificates through a letter.
Injured Ghulam Muhammad, Photo Khan, Ghulam Hyder and Gul Muhammad arrived at hospital at 10.00 a.m. while injured Ghulam Akbar whose name appearing in the letter did not come at hospital. He deposed that first he examined injured Ghulam Muhammad son of Chhuto Khan and found the following injuries on his person:-
1. Contusion 5 cm x 4 cm with swelling at mid parietal region.
2. Laceration 3 cm into skin cut at left temporal region.
3. Contusion 5 cm x 4 cm with swelling at the left side of chest.
4. Contusion 5 cm x 5 cm at right lower leg.
5. Contusion 5 cm x 5 cm at left lower leg.
6. Contusion 5 cm x 4 cm with swelling and deformity at middle of right forearm.
7 Contusion 5 cm x 4 cm with swelling and deformity at left forearm.
8. Contusion with swelling 2 cm on the nose.
9. Laceration 3 cm x 1 cm on left side of face.
After giving first aid, the patient was referred to LUMH, Hyderabad for further treatment. The nature of injuries was reserved. The injuries were caused by hard and blunt substance. The duration of the injuries was 1-3 hours.
Thereafter he examined injured Photo son of Muhammad Punjab and found the following injuries on his person:-
1. Contusion 6 cm x 4 cm with swelling at occipital region.
2. Contusion 6 cm x 3 cm at temporal region.
3. Contusion with swelling 8 cm x 4 cm at right temporal region.
4. Contusion 6 cm x 5 cm with deformity at lower left leg.
5. Contusion 6 cm x 5 cm at left thigh.
6. Contusion 5 cm x 4 cm with deformity at right wrist just above the wrist joint.
7, Contusion 6 cm x 4 cm: with swelling at right lower leg.
8. Contusion 4 cm x 4 cm with swelling and deformity at left upper arm.
9. Lacerated wound 2 cm x 1 cm into skin cut at mid of nose.
After giving first aid, this patient. was also referred to LUMH, Hyderabad for further treatment. The nature of all the injuries was reserved. The injuries were caused by hard and blunt substance. The duration of the injuries was 1-3 hours.
Thereafter he examined injured Ghulam Hyder son of Muhammad Punjab and found the following injuries on his person:--
1. Contusion with swelling 5 cm x 5 cm at left elbow.
2. Lacerated wound 5 cm x 3 cm bone not exposed at occipital region of skull.
After giving first aid, this patient was also referred to LUMH, Hyderabad for further treatment. The nature of injuries was reserved. The injuries were caused by hard and blunt substance. The duration of the injuries was 1-3 hours.
Subsequently on receipt of medical record of injured Ghulam Hyder from LUMH, Hyderabad he issued such final medical certificate, whereby injury No.1 was declared as Ghayer-Jaifa-Munaqilah falling under section 337-F(vi), P.P.C., while injury No. 02 as Shuja-e-Khafifah falling under Section 337-A(i). He issued such final medical certificate.
Thereafter he examined injured Gul Muhammad son of Muhammad Chutal and found the following injuries on his person:--
1. Contusion 5 cm x 3 cm at right forearm.
2. Contusion 4 cm x 3 cm at right lower leg.
3. Contusion 3 cm x 3 cm at right foot.
4. Contusion 5 cm x 3 cm at right side of chest.
5. Contusion 5 cm x 4 cm at left upper arm.
6. Contusion 4 cm x 4 cm at left side of chest.
7. Contusion 4 cm x 4 cm at right side of the chest.
8. Laceration 2 cm with swelling and skin cut at middle of the skull.
After giving first aid, this patient was also referred to LUMH, Hyderabad for further treatment. The nature of injuries was reserved. The injuries were caused by hard and blunt substance. The duration of the injuries was 1-3 hours. Subsequently on receipt of medical record of injured Gul Muhammad from LUMH, Hyderabad he issued such final medical certificate, whereby injuries Nos. 1 to 6 were declared falling under Section 337-L(ii), P.P.C., While injury No.7 as Shuja-e-Khafifah falling under Section 337-A(i).
Subsequently on 13.07.2013 at 8.30 p.m. he received the dead body of injured Photo Khan son of Muhammad Punjab for postmortem and examination with police letter and inquest report. He conducted the same. On external examination of the dead body he found following injuries.
1. Contusion 6 cm x 4 cm with swelling at occipital region.
2. Contusion 6 cm x 3 cm at temporal region.
3. Contusion with swelling 8 cm x 4 cm at right temporal region.
4. Contusion 6 cm x 5 cm with deformity at lower left leg.
5. Contusion 6 cm x 5 cm at left thigh.
6 Contusion 5 cm x 4 cm with deformity at right wrist just above the wrist joint.
7. Contusion 6 cm x 4 cm with swelling at right lower leg.
8. Contusion 4 cm x 4 cm with swelling and deformity at left upper arm.
9. Lacerated wound 2 cm x 1 cm into skin cut at mid of nose.
Doctor deposed that on internal examination of head and neck, on opening skull cavity, he found skull bone fractured at occipital and temporal bones at the sides of injuries, cerebral sheath at the sites and tearing of the brain matter at the sides, the whole skull cavity was filled with clotted blood.
On opening chest, he found the heart filled with blood, chambers of the head having. clotted blood, lungs collapsed. Limbs were showing the fractures of the following bones.
1. Left lower side of Tibia and Fibula
2. Fracture of the left femur
3. Fracture of radios at ulna at lower sides
4. Fracture of the left upper humorous bone Doctor further deposed that after receiving serious injuries, he was referred to LUMH, Hyderabad where he had died. From the external and internal examination of the deceased he was of the opinion that the death of deceased occurred due to head injury internal hemorrhage,. hypo volumic shock, which caused the cardio pulmonary arrest.
19. P.W-4 Dr. Muhammad Juman was also examined by the prosecution, who deposed that on 27.7.2013 he was posted as Medical Officer at Taluka Hospital, Sehwan. On that date he received dead body of deceased Ghulam Muhammad son of Muhammad Chutal for postmortem and examination through police letter, issued by ASI Wahid Bux Gadehi along with inquest report which was conducted and on external examination, he found following injuries on the person of deceased:-
1. Contusion mark 5 cm x 4 cm with swelling at mid parietal region of head.
2. Contusion mark with swelling laceration mark 3 cm of head at left temporal region of head.
3. Contusion mark with swelling measuring 5 cm x 5 cm at mid occipital region of head.
4. Contusion mark with swelling measuring 2 cm on nose.
5. Contusion mark with laceration measuring 3 cm x 1 cm on left side of face.
6. Contusion mark measuring 5 cm x 4 cm with swelling at left side of chest.
7. Contusion and deformity measuring 5 cm x 4 cm with swelling at lower 1/ 3rd of right leg.
8. Contusion measuring 5 cm x 5 cm with swelling at left lower leg at lower 1/3rd.
9. Contusion measuring 5 cm x 4 cm with swelling and deformity at middle 1/3rd of right forearm.
10. Contusion measuring 5 cm x 4 cm with swelling at left forearm.
Doctor further deposed that all the injuries were ante-mortem in nature.
On internal examination of head and neck, he found the left parietal and temporal bones fractured and depressed. Membrane on the left side was found contused and hemorrhagic. He found all cranial cavities were full of clotted blood. The brain was diffusely edematous with multiple hemorrhagic spots on left parietal and temporal lobes. On chest, he found lungs congested and edematous, heart contracted. On opening abdomen, he found all the abdominal visceral were congested, stomach contents fluidly material, small intestine contents liquid digested material, large intestine contents faucal matters, limbs, right arm swelling, muscles of fore-arm contused, displaced fracture of right radios and ulna bones. Right lower limb; muscles contused with displaced fracture of right tibia and fibula in lower 1/3rd. From the external and internal examination of the deceased he was of the opinion that the death of deceased occurred due to shock and head injury with internal hemorrhage into the cranial cavity and brain with diffused cerebral edematous and septicemia due to multiple injuries on legs and face leading to cardio respiratory arrest as caused by hard and blunt substance vide external injuries Nos. 1 to 10.
20. Thereafter the appellants filed application under section 540, Cr.P.C. for calling the doctors of Agha Khan and Ziauddin hospitals Karachi as a court witness before the trial court and the same was rejected, however, was allowed by this court. Court Witness-1 Syed Muhammad Baqir, Associate Professor Agha Khan Hospital was examined, who deposed that on 13.07.2013 patient/ deceased Ghulam Muhammad was brought at Agha Khan Hospital for treatment. The attendants, who came along with patient, informed them that the patient sustained injury as a result after the accident of car which hit with electric pole and then fell down in ditch. According to attendants the patient was conscious at the time of accident and was brought to Rajputana hospital, Hyderabad for treatment. Thereafter, Rajputana hospital referred the patient as he was not brought in senses, because he lost his consciousness and was not regaining senses, that's why he was referred to Agha Khan Hospital for further treatment. He came at emergency department at about 3.00 am.
They sent him for CT scan in their hospital, which was C.T scan of chest, neck, head and abdomen.
After report of same, all the C.T. Scan were normal. The x-ray of all his fore-libs showed multiple fractures on leg bones, fracture of right lower leg, fracture of both ulnar bones of both arms, fracture of left side of radios wrist. The patient lost his consciousness and because he was intubated and they had no ventilator available, so they shifted him out to some other private hospital.
21. Court Witness No.2 Dr. Abdul Ghani (Chief medical Officer, Clifton Branch Corporate Sector, Ziauddin Hospital, Karachi) was examined, who deposed that on 14th July, 2013 injured Ghulam Muhammad son of Chutto Khan was referred from Agha Khan Hospital for further medical treatment. He was unconscious with ventilator support, his son had given history that they were travelling towards Hyderabad from Sehwan and their car accidentally hit to an electric pole.
Initially they went to Civil Hospital Hyderabad and thereafter he was taken to Rajputana Hospital Hyderabad. In Civil Hospital he was stable, but in Rajputana Hospital he dropped his TCS level, then he was referred to Agha Khan Hospital Karachi, where he was intubated and he was given ventilator support. He was admitted in Ziauddin Clifton campus and he was attended by Dr. Tarique Mohammad, Neurosurgeon and Dr. Imtiaz Hashmi, Orthopedic surgeon. He was unconscious and TCS level was 3/15. His hemoglobin was 7.6 and having multiple fracture long bones i.e. a right leg and both arms. He was continuously on ventilator support and his family was insisting to keep him on ventilator support till 26th July, 2013 his family allowed us to put off the ventilator support. Then it was taken off and then patient expired on 26th of July 2013 at 6.00 p.m.
22. It is observed that during the cross-examination of the witnesses, initially the appellants took defence that the peoples of Habibullah Rind attacked upon complainant party and then they approached to Murad Ali Shah for exoneration, subsequently Murad Ali Shah asked them to lodged case against these appellants. It was also suggested that complainant party was kamdar of Murad Ali Shah. The appellants took another defence that it was a road accident and appellants have not committed any offence and then two court witnesses were examined before the trial court. Neither the court witnesses were eye-witness of the incident nor did they produce referral latter of the doctor or any police latter which may shoal that it was a road accident. Only it was stated by the court witnesses that they were informed by the attendant of the patient that due to road accident injured received the said injuries. No doubt accused can take several defences during the trial but the same are subject to some legal weight. Benefit of weakness of defence cannot be given to the prosecution in presence of established principle of law that the prosecution is duty bound to prove the case beyond reasonable doubt. In the present case prosecution examined two eye-witnesses, who fully supported the case against the appellants; recovery of the blood stained earth and recovery of crime weapons from some of the appellants is established from the evidence of- 'prosecution witnesses as discussed above and none of the defence version was brought by the appellants before the Investigation Officer during the investigation of the case.
23. The contention of the counsel for the appellants in respect of relationship of the witnesses with the deceased that the witnesses are near relatives of the deceased and are interested therefore their evidence cannot be relied upon has no force as in the instant matter, the eye-witnesses have sufficiently explained the date, time and place of occurrence, as well as each and every event of the occurrence. The parties are known to each other as is evident from their evidence and this is a day time incident, so there was no chance of mistaken identity of the appellants. Particularly the witnesses themselves received the injuries from the hand of the appellants and the medical evidence in that respect is supportive. The mere fact that a witness is closely elated 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 as has held by the Supreme Court in case of Lal Khan v. State (2006 SCMR 1846). It is also settled by the Supreme Court in case of Zulfiqar Ahmed and another v. State (2011 SCMR 492), that merely on the ground of inter se relationship the statement of a witness cannot be brushed aside. The concept of 'interested witness' was also discussed elaborately in case of Iqbal alias Bala v. The State (1994 SCMR 1) and it was held that 'friendship or relationship with the deceased will not be sufficient to discredit a witness particularly when there is no motive to falsely involve the accused. The Honourable Supreme Court in case of Zahoor Ahmed v. The State (2007 SCMR 1519), has held as under:- "6. The petitioner is a maternal-cousin of the deceased, so also the first cousin of the deceased through paternal line of relationship and thus, in the light of the entire evidence it has correctly been concluded by the learned High Court that the blood relation would not spare the real culprit and instead would involve an innocent person in the case. Further it has rightly been observed that it was not essential for the prosecution to produce each of the cited witnesses at the trial."
24. As regards to the contention of the learned counsel for the appellants that the witness Ghulam Hyder, who was also injured was not examined by the prosecution during the trial and was given up by the prosecution which is fatal to the prosecution and it reflects that the said witness was not supporting the case has no force as the prosecution has to prove the case by producing confidence inspiring and trustworthy evidence. It is observed that the witness Ghulam Hyder was mentally unable to give evidence therefore, he was given up by the DPP vide his statement dated 17-09-2015. It is settled by the Honourable Supreme Court that sole evidence of a material witness is always sufficient to establish the guilt of accused, if the same is confidence inspiring and trustworthy supported with other independent source of evidence because law requires quality of evidence not quantity to prove the charge. Reliance can be placed on the cases of Namoos Khan and another v. The State (2017 PCr.LJ 34), Behram v. The State (2015 YLR 150) and Niaz-ud-Din and another v. The State (2011 SCMR 725).
25. Another contention of learned counsel for the appellants that the FIR was delayed by 39 hours and no explanation was furnished by the complainant party, has too no force as the complainant in his examination-in-chief has deposed that he arranged the vehicle and shifted injured persons to police station wherefrom injured were referred to Taluka Hospital Sehwan for treatment and again were referred to Civil Hospital Hyderabad and on second day Photo was died, after the formalities at Hospital he along with the witnesses approached police station where ASI Altaf Mangi was present, who told them that WHC is not available and he will come after one hour and on his arrival FIR was registered. The complainant was himself injured and was busy in the treatment; his first priority would be to save the lives of the injured persons instead of lodging the FIR. In view thereof, the delay if any is explained and is not fatal to the prosecution under the above facts and circumstances of the present case. Honourable Supreme Court has held that delay by itself in lodging of the FIR is not E material and factors to be considered. Reliance can be placed on the case of Muhammad Nadeem alias Deemi v. The State (2011 SCMR 872).
26. Prosecution examined two eye-witnesses, who fully supported the case of prosecution on each and every aspect, they were cross-examined but no major contradiction was found in their evidence. Their evidence is reliable, trustworthy and confidence inspiring. Learned counsel for the appellants during arguments pointed out some minor contradictions and discrepancies in the evidence of witnesses, which in my view are due to the passage of time and the same are occurred in each and every case which 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 the case of Zakir Khan v. The State (1995 SCMR 1793).
Relevant paragraph is reproduced as under:-- "13. The evidence recorded in the ease 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 while giving evidence before the Court has sufficient probative force to bring home the guilt to the accused."
27. The upshot of the above discussion is that the prosecution has successfully established its case against the appellants through ocular account furnished by eye-witnesses, which is corroborated by the medical evidence coupled with circumstantial evidence. Learned counsel for the appellants has filed to point out any material illegality or serious infirmity committed by learned trial Court while passing the impugned judgment, which in my humble view is based on the appreciation of the evidence and the same does not call for any interference by this Court. Thus, the conviction and sentence handed down by learned trial Court to the present appellants is hereby maintained and the instant appeal filed by the appellants merits no consideration, which is dismissed accordingly.