SHAUKAT ALI RAKHSHANI, J. The captioned criminal appeal and criminal revision petition emanate from the judgment dated 20.11.2022 penned by learned Sessions Judge, Naseerabad at Dera Murad Jamali ("trial court") in a case vide FIR No.20/2021 registered with Police Station Saddar Dera Murad Jamali, whereby the appellants were convicted and sentenced under section 302(b) of the Pakistan Penal Code, 1860 ("Penal Code") for life imprisonment with the direction to pay Rs.300,000/- each to the legal heirs of deceased Jaggan Khan as compensation under section 544-A of the Criminal Procedure Code, 1898 ("Cr.P.C") and in default thereof to further suffer six months SI each as well as convicted and sentenced under section 324 of the Penal Code for causing firearm injuries to accused Akhtar Ali to suffer five years RI with a fine of Rs.20,000/- and in default to further suffer SI for two months each and under section 337-A(i) of the Penal Code for causing injuries to victim Safar Ali (PW-2) to suffer one year RI each with payment of Daman of Rs.5,000/- payable to injured Safar Ali and in default of fine to be dealt with section 337-Y of Penal Code with the premium of section 382-B of the Code.
As the captioned criminal appeal and criminal revision petition stem from a common judgment, therefore, same are being parted with through this consolidated judgment.
2. Condensed but relevant facts of the instant case are. that on 26.03.2021 at night complainant Mohkamuddin (PW-1) along with his nephew namely Jaggan Khan went to the house of his buzgar Safar Ali (PW-2), situated at Bedar Beroon, where whilst they were discussing about their crops of chana; in the meanwhile, at about 8.30 pm accused persons Muhammad Ashraf, Akhtar Ali and unknown accused armed with kalashnikove, 223 rifle and pistol respectively came and made firing upon his nephew Jaggan Khan, due to which he received firearm injuries, however, the complainant tried to apprehend the accused persons, but on account of firing of unknown assailant Akhtar Ali sustained firearm injuries and fell down on the ground. It is further averred that Safar Ali (PW-2) also received injuries on his head, while on hearing the fire shots his relatives Taj Muhammad and Mohabbat Ali reached there and the accused persons made their escape good while riding on motorcycle. The motive was stated to be exchange of harsh words between the complainant and his nephew with the accused persons a time back.
3. After registration of the case, investigation was entrusted to SI Arbab Ali Lashari, the first Investigating Officer (I.O) (PW-9), who went to the crime scene, prepared site sketch (Ex.P/9-B), inquest report of the deceased Jagan Khan (Ex.P/9-C), secured bloodstained soil of deceased Jagan Khan, three bullet empties of rifle 223, four bullet empties of 7.52 and two empties of TT pistol from the spot through recovery memos. and prepared its seal parcels. Thereafter, he reached Civil Hospital Dera Murad Jamali, where he recorded the statement of injured Safar Ali (PW-2) whereas Jagan Khan was referred to Larkana for further treatment, but he could not survive. On 27.03.2021 complainant produced bloodstained clothes of deceased Jagan Khan, which were taken into possession through recovery memo, whereof he prepared sealed parcel No.6. On 28.03.2021 accused Akthar Ali was arrested. On 31.03.2021 he went to Karachi in order to arrest the other felons involved in some other case, thus investigation of the instant case was entrusted to second IO SI- SHO Ali Sher Qalandarani. On 03.04.2021, after coming back from Karachi, the investigation was again handed over back to him; meanwhile appellants Muhammad Ashraf and Ghulam Yasin were arrested.
On conclusion of the investigation, the accused persons were sent up to face the deeds of their culpability before the trial court. On the stated allegations, a formal charge was read over to the appellants, to which they did not plead guilty and claimed trial. Thereafter, in order to drive home the indictment, the prosecution produced as many as ten witnesses in the instant case. On close of the prosecution side, the appellants were examined under section 342 of Cr.P.C, whereafter the appellants neither stepped into the witness box to depose on oath nor produced any evidence in his defence; hence at the end of the trial, the appellants were convicted and sentenced in the terms mentioned in the para supra.
4. Learned counsel for the appellants inter alia contended that there are material contradictions in the statements of prosecution witnesses, making the instant case highly doubtful. He maintained that learned trial judge has misread the evidence and has recorded the conviction and sentence contrary to the evidence available on record. He urged that the recovery of crime weapons allegedly made from the appellants have been foisted to strengthen the case, which is unjustifiable, which has made the impugned judgment illegal, therefore, requested for acquittal of the appellants.
Conversely, learned counsel for the complainant and learned APG strenuously opposed the instant criminal appeal filed by the appellants against their conviction and sentence and contended that the impugned judgment is based upon proper appraisal of the evidence, which need not be overturned, therefore, sought dismissal of the appeal.
5. Heard. Record sussed out with the able assistance of learned counsel for the adversarial parties.
The entire edifice of the prosecution's case rests upon the ocular account of complainant Mohkamuddin (PW-1), eye-witnesses Safar Ali (PW-2), Mohabbat Ali (PW-3) and Taj Muhammad (PW-4), medico legal evidence furnished by Dr. Hamal Khan (PW-5), recovery of kalashnikov made from appellant Muhammad Ashraf, TT pistol from appellant Ghulam Yasin and rifle 223 from appellant Akhtar Ali, bloodstained clothes of deceased Jaggan Khan and other articles coupled with empties recovered from the crime scene and positive FSL report thereof. The first and foremost evidence furnished by the prosecution is the ocular account of Mohkamuddin (PW-1), eye-witness Safar Ali (PW-2), Mohabbat Ali (PW-3) and Taj Muhammad (PW-4). Complainant Mohkamuddin (PW-1) reiterated what he had stated in his report (Ex.P/1-A). He also tendered his affidavit (Ex.P/1- B), whereby he had nominated appellant Ghulam Yasin to be the said unknown culprit.
Mohkamuddin (PW-1) testified that on 26.03.2021, he along with his nephew deceased Jaggan Khan came to the house of their buzgar Safar Ali (PW -2), where they were chatting on the chana crops and at 8.30 pm, appellants Akhtar Ali, having rifle 223, Muhammad Ashraf with kalashnikov and one unknown person armed with TT pistol came there; amongst them appellant Akhtar Ali hit Safar Ali (PW-2) with the handle of kalashnikov, whereby he sustained injury, whereafter all of them made firing upon them, due to which Jaggan Khan received firearm wounds and appellant Akhtar Ali also received fire shot mistakenly made by unknown companion.
Subsequently, without providing description of the said unknown culprit in his report (Ex.P/1-A), the complainant (PW-1) tendered an affidavit dated 02.04.2021 (Ex.P/1-B), whereby he nominated appellant Ghulam Yasin to be the said unknown culprit. Safar Ali (PW-2) furnished the similar ocular account, however, added that on 31,03.2021 appellant Ghulam Yasin brought a delegation headed by Daro Marri and Muhammad Nawaz Khosa admitting involvement in the crime. He also furnished an affidavit, whereby he also nominated appellant Ghulam Yasin. Mohabbat Ali (PW-3) and Taj Muhammad (PW-4) have affirmed and corroborated the same story as narrated by complainant Mohkamuddin (PW-1) and Safar Ali (PW-2). Both of them stated that on 26.03.2021 after hearing fire shots, when they reached the crime scene, they saw Muhammad Ashraf, Akhtar Ali and unknown accused armed with kalashnikove, 223 rifle and TT pistol respectively, who made firing upon Jaggan Khan, due to which he received firearm injuries and that the complainant tried to apprehend them, but on account of firing of unknown culprit (Ghulam Yasin) Akhtar Ali sustained firearm injuries and fell down on the ground.
Reappraisal of the testimony of PW-3 and PW-4 demonstrates that albeit they arrived at the crime scene, but it cannot be believed that they had seen appellant Akhtar Ali making fire because in view of the statements of PW-1 and PW-2 a lot had happened before their arrival, thus their depositions seem a bit exaggerated, whereupon explicit reliance would not be safe. However, their testimony regarding remaining facts is relevant and confidence inspiring, particularly, regarding apprehension of appellant Akhtar Ali, who was found injured and their attempt to chase and apprehend the other culprits.
6. The Medico Legal Certificate ("MLC") (Ex.P/5-B) of deceased confirms the ocular account that deceased Jaggan Khan received firearm wound, which culminated into his death. The MLC (Ex.P/5- B) of deceased Jaggan Khan shows that he received the following firearm injuries;
1. Left wrist, wrist joint, crushed anteriorly bones, vessels, muscles exposed, fractured ulna, fresh, mauively bleeding.
2. Left buttock 0.5cm size, inverted margin of bullet fresh bleeding, entrance of bullet.
No exit seen.
Anteriorly of chest lacerated wound.
Similarly MLC (Ex.P/5-C) of Safar Ali (PW-2) also coincide and affirms the lacerated wound on his skull. The defence neither disputes the unnatural death of the deceased with firearm nor the injuries to appellant Akhtar Ali.
The injuries sustained by appellant Akhtar Ali has also been confirmed by MLC (Ex.P/5-A), revealing following firearm bullet wounds;
1. Entrance of bullet left anterior aspect of ankle joint inverted, bleeding 0.5cm size.
2. Exit: 1cm in size, everted margins, fresh bleeding, fractured, melleus bone left anteriorly aspect of clavicle lacerated wound.
7. In the instant case, the prosecution has although been successful to prove the recovery of kalashnikov made from appellant Muhammad Ashraf, TT pistol from appellant Ghulam Yasin and rifle 223 from appellant Akhtar Ali, whereof separate FIRs bearing Nos.21, 27 and 28 of 2021 have been lodged for violating section 13(e) of the Arms Ordinance, 1965, but the fact remains as to whether the recovered crime weapons can be considered as a corroborative piece of evidence in the instant case or otherwise. The prosecution albeit has procured a positive FSL reports (Ex.P/10-C and Ex.P/10-D), pertaining to the recovered firearms and empties secured from crime scene vide recovery memo. (Ex.P/6-A), but the same cannot be relied upon because the prosecution had sent the said crime weapons recovered from them with empties together, which has diminished its evidentiary value as held by the apex Court in the case of "Mushtaq v. The State" (PLD 2008 SC 1) and "Ali Sher v. The State" (2008 SCMR 707).
It is worthwhile to note that the rifle 223 recovered from Akhtar Ali has also matched with the empties as per FSL reports (Ex.P/10-C and Ex.P/10-D), which were though sent together but both were secured on the day of occurrence, thus, the trial court has rightly appreciated the same to be the crime weapon, having worth of reliance as an incriminating piece of evidence.
8. Critical analysis of the ocular account furnished by PW-1 to PW-4 appears to be trustworthy and confidence inspiring, which has been confirmed by the medical evidence and recovery of rifle 223 of appellant Akhtar Ali, leading us to believe that the prosecution has irresistibly proved the indictment against the appellants Muhammad Ashraf and Akhtar Ali, having been appreciated well by the trial court except relying upon the recovery of crime weapon recovered from appellant Muhammad Ashraf and Ghulam Yasin and FSL reports thereof and holding guilty the appellant Ghulam Yasin on the basis of supplementary statement.
The prosecution has fallen short in proving the indictment of murder of Jaggan Khan against appellant Ghulam Yasin for manifold reasons. Undeniably, at the time of lodging FIR anti recording statements on the fateful day neither the complainant nor any other witness nominated appellant Ghulam Yasin or gave any description in order to subsequently identify him in a formal test of identification parade. It is also worthy to make note of the fact that the prosecution also did not carry identification parade of appellant Ghulam Yasin, thus identification in the court would not be safe to rely upon and hold him guilty of the charge as the prosecution witnesses had ample opportunity to see him in court premises during trial.
Appellant Ghulam Yasin was nominated for the first time on 31.03.2021 through an affidavit, reffering to a delegation accompanied by him for reconciliation, which is nothing but a supplementary statement. Such supplementary statement has always been deprecated by the apex Court as well as by this Court, considering the same to be afterthought, carrying no evidentiary worth of appreciation. In this regard, we are fortified to follow the dictum expounded in the cases of "Akhtar Ali v. The State" (2008 SCMR 6), "Kashif Ali v. The Judge, Anti-Terrorism Court, Lahore" (PLD 2016 SC 951), "Haider Ali v. State" (2021 SCMR 629) and"Rafaqat Ali v. State" (2022 SCMR 1107).
9. For what has been discussed hereinabove, the appeal to the extent of appellants Muhammad Ashraf and Akhtar Ali is dismissed and the conviction and sentence awarded to them is maintained, whereas the appeal to the extent of Ghulam Yasin is allowed and he is acquitted of the charge.
10. As far as the Criminal Revision Petition bearing No.04/2023, pertaining to enhancement of sentence of appellants is concerned, we believe that in the instant case the prosecution has failed to establish the seat of injuries, culminating into culpable homicide of deceased Jaggan Khan, making the case one of mitigating circumstances, therefore, the sentence awarded by the trial court seems justified to the extent of appellants Muhammad Ashraf and Akhtar Ali, which need not to be enhanced.
In view of the above, as a natural outcome the criminal revision petition is dismissed.