ZULFIQAR ALI SANGI, J. Through this appeal, appellant Paras Ali son of Wahid Bux, has assailed the Judgment dated 27.09.2019, passed by learned Additional Sessions Judge-III/MCTC-II, Sukkur, in Sessions Case No.83/2012 re: "The State v. Paras Ali and another", arising out of Crime No.171/2011, registered at Police Station C-Section, Sukkur, for an offence punishable under Sections 302 and 34, P.P.C., whereby the appellant was convicted for an offence under section 302(b), P.P.C. and sentenced to suffer life imprisonment as Tazir and to pay compensation of Rs.500,000/- to be paid to the legal heirs of deceased Akbar Gadani as provided under Section 544-A, Cr.P.C. In case of failure in payment of compensation, appellant further undergo SI for six months; however benefit of Section 382-B, Cr.P.C. was extended to the Appellant.
2. Succinct facts of the case as unfolded by the Complainant in his FIR are that the elder brother of Complainant namely Ghulam Akbar is head constable in Sindh Police. Accused namely Folad son of Wahid Bux alias Dhamoo Gadani is also residing in their neighborhood, who is a criminal typed person. They always used to say that you may migrate from the neighbor because your brother is a Policeman. Complainant forbade and argued them that why they should get shifted. They stated that they are earning their livelihood so why are you disturbing them. On that, they were annoyed and said that you would have to suffer. Yesterday on 24.11.2011, Complainant along with his younger brother Anwar were present at home when at about 9:00 pm in the night, there arises a noise outside the home, on that both brothers went outside and saw that Folad and Paras both sons of Wahid Bux alias Dhamoo Gadani had iron rods in their hands and were hitting to his brother Ghulam Akbar, we accosted; while seeing them; they took out pistols from their folds with intention to murder made straight fires upon brother of Complainant namely Ghulam Akbar which hit him and because of that he fell down, then started to abuse them and said that if you do not migrate, you would suffer more. Thereafter, they ran away from the scene. After that he saw that his brother sustained firearm injury in the left side below the left arm, blood was oozing. They immediately shifted him to Civil Hospital Sukkur and obtained such letter of first aid and got treatment, which were continued. Now after getting free, he appeared at PS and report that the accused Folad and Paras Gadani, with intention to murder, made straight fires of pistol upon his brother Ghulam Akbar and injured him on the enmity of not migrating from the street, hence this FIR.
3. After usual investigation, challan was submitted against accused, in which accused Paras was shown in custody while accused Folad was shown as absconder. After completing the formalities, accused Folad was declared as proclaimed offender. Copies under section 265-C, Cr.P.C, were supplied to present accused. Charge was framed against accused Paras at Ex.
5. Accused pleaded not guilty and claimed to be tried vide his plea at Ex. 6.
4. In order to prove the charge against present accused, prosecution examined PW-1 Complainant Dilbar Khan at Ex.8, he produced copy of FIR at Ex. 8/A, PW-2 Muhammad Anwar at Ex. 9, PW-3 Ali Gul at Ex. 10, who produced mashirnama of injuries, mashirnama of clothes, mashirnama of site inspection and blood stained earth and for recovery of empties, mashirnama of inspection of dead body of deceased and mashirnama of clothes of deceased at Ex. 10/A to Ex. 10/E, respectively, PW-4 Dr. Muhammad Yaseen was also examined at Ex. 15, who produced police letter and provisional medico-legal certificate at Exs. 15/A and 15/B, PW-5 Dr. Rafique Ahmed Kamangar at Ex. 16, he produced postmortem certificate and postmortem report at Ex. 16/A and Ex. 16/B, respectively, PW- 6 SIP Muhammad Ibrahim Mirani was examined at Ex. 17, PW-7 SIP Muhammad Ali Bhutto was examined at Ex. 18, who produced chemical report, danishtnama, mashirnama of arrest and sketch of place of wardhat at Ex. 18/A to Ex. 18/D, respectively, PW-6 Supervisor Tapedar Hafiz Naimatullah Soomro at Ex. 19, who produced police letter at Ex. 19/A. Thereafter learned ADPP closed the prosecution side at Ex.22.
5. Statement of accused Paras Ali was recorded under section 342, Cr.P.C. at Ex.23, in which he denied the prosecution allegations and claimed his innocence. Accused neither examined himself on oath nor produced any witness in his defense.
6. On reassessm ent of evidence so also after hearing the parties, the trial Court has passed the impugned judgment whereby the appellant was convicted and sentenced as stated above, hence this appeal.
7. Learned counsel for the appellant has contended that the prosecution has failed to prove its case beyond reasonable doubt; that learned trial Court did not appreciate the important aspect regarding the major contradictions of the prosecution case; besides complainant has given contradictory statement with the statements of PWs hence case of the prosecution cannot be freed from shadow of reasonable doubt; that there was no any unanimous evidence which could be considered for conviction of appellant; that a single dent in prosecution case, which seems to be necessary, goes in favour of accused; that there is conflict in the ocular account and medical evidence; besides presence of eye-witness at the time of alleged incident, being doubtful, such benefit of loophole/lacuna in the prosecution case automatically goes in favour of accused; that conduct of witnesses was also doubtful because they did not try to save the deceased from alleged attack of accused; that all PWs are closely related to deceased, thus their evidence cannot be reliable; 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. In support of his contention, learned Counsel placed reliance upon the case law reported as Zaffar v. The State (2021 YLR 1918), Mansab Ali v. The State (2019 SCMR 1306), Najaf Ali Shah v. The State (2021 SCMR 736) and Abdul Jabbar and another v. The State (2019 SCMR 129).
8. Learned DPG appearing for the state has supported the impugned judgment and further contended that the prosecution has proved its case against the appellant beyond any reasonable shadow of doubt by producing oral as well as documentary evidence; that the learned trial court has rightly convicted the appellant and he does not deserve any leniency; that there appears no illegality or irregularity in the impugned judgment which is well reasoned and does not require any interference of this court. In support of his contention, he placed reliance upon the cases of Muhammad Rashid v. The State (2022 YLR 119), Mazhar Ellahi v. The State (2020 SCMR 586), Bakht Munir v. The State and another (2020 SCMR 588), The State v. Noor Ahmed alias Thola and 3 others (1991 PCr.LJ 2007), Sultan Lanjwani Jat v. The State (2021 YLR 2171), Hazar Khan and 3 others v. The State (2020 YLR Note 65) and Muhammad Riaz v. Muhammad Zaman and another (PLD 2005 SC 484).
9. I have heard learned counsel for the parties and have gone through the material available on record with their able assistance.
10. The entire evidence produced by the prosecution is scanned and I am of the view that the prosecution has successfully proved the case against the appellant Paras Ali beyond the shadow of reasonable doubt.
11. The incident took place on 24.11.2011 at 09-00 PM and the FIR was registered on the next day i.e. 25-11-2011 at 0900 hours such delay in registration of FIR has properly been explained by the complainant. According to Complainant, he took firstly his injured brother Ghulam Akber to Civil Hospital Sukkur thereafter he was referred to Karachi hospital where he expired. After registration of the FIR, the I.O. proceeded towards the place of the incident on the same day i.e. 25.11.2011 and secured two empties of 30 bore of and blood-stained earth from the place of wardat and sent for chemical report. The injured was examined and treated on the same day at 9:20 a.m. by Dr. Muhammad Yaseen and found firearm injury on his person. All these facts excluded the possibility of consultation or deliberation on the part of the prosecution. The Honourable Supreme Court in the 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 also perused 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 know about the occurrence arrived in the Emergency Department of the Hospital where Muhammad Askar Khan, Complainant/PW-1, 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 the 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.
12. The prosecution in order to prove its case, examined complainant Dilbar Khan (eye-witness), who stated that on 24.11.2011, about 9.00 p.m., he was present at his house at Balouch colony near outer signal, old Sukkur. His brother P.W. Muhammad Anwar was also with him. Suddenly he heard cries. They immediately came out from their house and found that accused Paras and absconding accused Folad both were armed with iron rods and were causing blows with such rods on the head of his deceased brother Ghulam Akbar. When they reached there both the accused Paras and Folad took out their pistols and fired at his brother Ghulam Akbar and due to receiving such injuries, he raised cries and fell down. He was bleeding and the accused left by extending them threats that if they did not leave that place, they would lose more. He took his brother Ghulam Akbar to Civil Hospital, Sukkur and thereafter to Karachi; however, in resulting thereof, he succumbed injures and died on 07.12.20211 in the hospital. PW Muhammad Anwar has also deposed in the same line as deposed by the complainant. Both witnesses were cross-examined at length. No major contradictions were found in their evidence; however, some minor contractions are available, which in my view are natural. The complainant during cross-examination denied the suggestion of false implication or at his instance this case was registered against the accused persons. There is no denial of the natural death of the deceased. The evidence recorded in the case further indicates that all the prosecution witnesses have fully supported each other on all material points and also their evidence is corroborated by the medical evidence.
Though the witnesses are close relatives of the complainant and the deceased they have no strong motive to falsely implicate an innocent person in a murder case while substituting the actual culprit. Both the witnesses denied the suggestion of false implication. The dispute shown by the complainant was that his deceased brother was serving in police department and accused were annoyed with his residence in the same area, as the accused were hardened criminals and in this regard the accused person has no any strong defence which may suggest that the appellant/accused has not murdered deceased Ghulam Akbar. However, the evidence produced by the prosecution is reliable, trustworthy and confidence-inspiring which is also supported by the medical evidence and other circumstantial evidence. The presence of witnesses at the time of the incident has been proved by the prosecution beyond any shadow of the doubt. 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 criterion 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. Reliance is placed on the case of Lal Khan v. State (2006 SCMR 1846).
13. In support of the ocular evidence the prosecution produced medical evidence and examined Dr. Muhammad Rafique, who conducted the postmortem of the deceased and during postmortem had found the following injuries on the person of deceased:-
1. One lacerated punctured wound of entry of firearm present at left middle part of chest at mid auxiliary line measuring I cm in diameter circular in shape with inverted margins. No wound of exit.
2. One stitched wound of surgical incision at the midline of abdomen measuring 15 cm.
3. Three holes of brain measuring 2 x 2 cm at the abdomen at the left upper abdomen and the left lower pelvis, respectively.
As per the final opinion after external and internal examination of deceased Ghulam Akbar son of Imamuddin Gadani, the doctor was of the opinion that death occurred due to speticiemia and shock as a result of damage to vital organ all injuries were ante-mortem in nature and caused by discharge from firearm. Injury No. 1 is sufficient to cause death in ordinary course of nature.
During the cross-examination, he stated that the deceased sustained one firearm shot, which were having blackening and cheering over it at a distance of within 3 feet. From the perusal of the medical evidence, it established that the ocular evidence is in line with the medical evidence. It may be the repetition but necessary to clear that the FIR of the present incident was lodged promptly after the death of deceased and there is no room for consideration that the same was registered with consultation or deliberation. The version given by the complainant in the FIR and at the time of recording his evidence before the trial court is fully supported by the medical evidence.
14. On reassessm ent of entire -evidence of prosecution it is established that the accused/appellant Paras Ali is nominated in FIR along with co-accused Folad with specific role of causing fire arm injury to the deceased on his vital part and the evidence of persecution witnesses is supported by medical evidence. Even otherwise there is no principal of law that in each and every case doctor's evidence must have preference over direct evidence. If witnesses have seen the incident and have implicated the accused and their statements have been accepted by Court, then any conflict with evidence of expert does not detract the evidentiary value of the eye-witnesses as has been held by the apex court in the case of Muhammad Younas and another v. The State (1990 SCMR 1272).
15. It is further observed that to believe or disbelieve a witness all depends upon the intrinsic value of the statement made by him. Even otherwise, there cannot be a universal principle that in every case an interested witness shall be disbelieved or a disinterested witness shall be believed. It all depends upon the rule of prudence and reasonableness to hold that a particular witness was present at the scene of the crime and that he is making a true statement. A person who is reported otherwise to be very honest, above board and very respectable in society gives a statement which is illogical and unbelievable, no prudent man despite his nobility would accept such a statement.
Reliance can be placed on the case of Abid Ali and 2 others v. The State (2011 SCMR 208). It is well settled principle of law that merely on the ground of inter se relationship the statement of a witness cannot be brushed aside. Even the '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 as has been held by the Honourable Supreme Court of Pakistan in the cases of Zulfiqar Ahmed and another v. The State (2011 SCMR 492) and lqbal alias Bala v. The State (1994 SCMR 1).
16. After scanning the ocular evidence produced by the prosecution and the medical evidence, I have examined the evidence of PW Ali Gul Gadani produced by the prosecution as a mashir, who deposed that he was present at Civil Hospital Sukkur where co-mashir Munawar Gaddani was also with him. He further deposed that Complainant handed over blood stained clothes of injured Ghulam Akbar to police officer who prepared mashirnama. He deposed that in his presence the place of incident was visited by the police where I.O. collected blood stained earth and empties were recovered from the place of incident and its memo was prepared. Mashirnama of inspection of the dead body was also prepared in his presence. The prosecution also examined SIP Muhammad Ibrahim Mirani, who has deposed that he saw dead body and received clothes of deceased and prepared such mashirnama. He further deposed that accused Paras Ali produced crime weapon voluntarily on 08.12.2011. He prepared memos and inquest reports in presence of mashirs. The Mashir and Investigation Officer were cross-examined at length, but the defence counsel failed to bring any substantial material which favours the accused/ appellant.
17. Learned counsel for the appellant pointed out some minor contradictions and discrepancies in the evidence which in my view are not sufficient to hold that the case of the prosecution is doubtful. It is settled by now that, wherein the evidence, the prosecution established its case beyond a reasonable doubt then if there may some minor contradictions which always are available in each and every case the same may be ignored, as has been held by Honourable Supreme Court in case of Zakir Khan v. The State (1995 SCMR 1793), 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 while giving evidence before the Court has sufficient probative force to bring home the guilt to the accused."
18. Thus based on the discussion made hereinabove and on the reassessment of the entire evidence produced by the prosecution. I am of the considered view that the prosecution has proved its case beyond a reasonable doubt against the appellant Paras Ali by producing reliable, trustworthy, and confidence-inspiring oral evidence as well as medical evidence, ecovery of crime weapon so also the documentary evidence in support of the same. I, therefore, uphold all the sentences, fine, and penalties for each offence in the impugned judgment whilst dismissing his appeal.