ZAHEER-UD-DIN KAKAR, J. Through this appeal the appellant, Ashraf son of Umeed Ali, has assailed the judgment dated 30.03.2023 (the impugned judgment) passed by the Sessions Judge, Lasbella at Hub (the trial Court), in case FIR No.106 of 2021 dated 17.07.2021, registered at Police Station, Winder for offences under Sections 302, 34 P.P.C., whereby he was convicted and sentenced as under: "Under Section 302 (b) P.P.C. to suffer Rigorous Imprisonment for life with direction to pay compensation amount of Rs. 400,000/- (rupees four lac) to the legal heirs of deceased under Section 544-A. Cr.P.C. In case of default in payment of compensation, the accused snail further undergo for a period of six months SI with benefit of Section 382-B Cr.P.C"
2. Precisely stated the facts of the case as enumerated in the judgment impugned are to the effect that on 17.07.2021 after Maghrib prayer, brother of complainant Noorullah was standing in front of Aziz Shedi Puncture Shop, meanwhile, Ashraf son of Umeed Ali, armed with Pistol made firing, due to which Noorullah fell down and succumbed to injuries. The accused was apprehended by the complainant at the spot, meanwhile, with the connivance of Papu and Lesu sons of Umeed Ali, Zahid son of Babu along with two unknown persons got him fled away from the clutches of complainant.
3. After formal investigation, report under Section 173 Cr.P.C was submitted before the trial Court and the appellant was sent to face the trial. The trial Court seized with the matter, framed charge on 27.12.2021 against the appellant, to which he pleaded not guilty and claimed trial. In order to substantiate its case, the prosecution produced and examined the following witnesses: PW-1 Muhammad Khan complainant reiterated the contents of application Ex-P/1-A which was submitted by him before SHO for registration of FIR.
PW-2 Muhammad Aslam, eye-witness of the incident.
PW-3 Bashir Ahmed, shifted the deceased to hospital.
PW-4 Ghulam Akbar, eye-witness of the incident.
PW-5 Shahzad, mushir of the recovery memo. of blood stained cloths of the deceased Ex-P/5-A.
PW-6 Dr. Aziz Ahmed, medical Officer, examined the dead body of deceased and found the following injuries:
(1) A bullet wound on front of chest entrance wound noticed, no exit wound found.
(2) Another wound noted at right humerus bona, damaging muscle around medial side of right humerus.
Probable cause of death: Cardiopulmonary arrest.
He produced death certificate as Ex-P, 6-A.
PW-7 SI Muhammad Afzal, mushir of disclosure of the accused and recovery memos of TT Pistol, three live cartridges and Identification of place of occurrence Ex-P/7-A to Ex-P/7-C.
PW-8 SI Qazi Muhammad Aslam, mushir of the recovery memo of one empty Ex-P/8-A. He also produced memo of the search of dead body Ex-P/8-B PW-9 SI Muhammad Bakhsh, Investigating Officer, conducted investigation, recorded statements of witnesses, produced FIR, site sketch, site sketch of recovery of crime weapon, police report of unnatural death, incomplete challan, Firearms Expert report of Pistol and empties, chemical examination report of blood stained cloths and incomplete challan Ex-P/9-A to Ex-P/9-I In his statement recorded under Section 342 Cr.P.C, the appellant pleaded innocence and denied all the allegations leveled against him. He did not opt to appear under Section 340(2) Cr.P.C or to lead defence evidence. On conclusion of trial, the trial Court convicted and sentenced the appellant as mentioned above. Hence this criminal appeal.
5. Learned counsel for the appellant contended that the prosecution had failed to prove its case against the appellant beyond doubt; that the trial Court did not appraise the evidence properly which had caused serious miscarriage of justice; that the ocular account furnished by the complainant (PW-1), PW-2 and PW-4 were not trustworthy; that the complainant is brother of the deceased and interested witness, therefore, his testimony cannot be believed; that the said witnesses contradicted each other on material points; that the Pistol was foisted upon the appellant by the police in connivance with the complainant party. Finally, he prayed for acquittal of the appellant.
On the other hand; learned APG assisted by learned counsel for the complainant has defended the impugned judgment. They contended that the appellant has committed murder of Noorullah and the ocular evidence furnished by PWs-1, 2 and 4 available on record coupled with medical evidence, disclosure of the appellant, recovery of crime weapon on the pointation of appellant and positive report of Firearms expert are sufficient to prove the case against him. Therefore, he does not deserve any leniency by this Court.
6. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of the evidence. We have also perused the impugned judgment with the eminent assistance of learned counsel for the parties. After having gone through the entire prosecution evidence, we are of the view that the prosecution has substantiated the guilt by producing convincing and forthright evidence in the shape of statements of Muhammad Khan (PW-1), Muhammad Aslam (PW-2) and Ghulam Akbar (PW-4). They have fully supported the prosecution version and stood firm to the test of cross-examination and nothing advantageous could be elicited. These PWs remained consistent on each and every material point inasmuch made deposition exactly according to the circumstances happened in this case, therefore, it can safely be concluded that the ocular account furnished by the prosecution is reliable, straightforward and confidence inspiring. All these PWs have reasonably explained their presence at the place of occurrence. The medical evidence furnished by PW-6 Dr. Aziz Ahmed, who conducted examination of the dead body of deceased and issued certificate Ex-P/6-F, is in line with the ocular account.
Leaned counsel for the appellant could not point out any reason as to why the complainant has falsely involved the appellant in the present case and let off the real culprit, who has committed murder of his brother. Substitution in such like cases is a rare phenomenon.
7. As far as the question that the complainant is brother of the deceased, therefore, his testimony cannot be believed to sustain' conviction of the appellant is concerned, it is by now a well established principle of law that mere relationship of the prosecution witness(s) with the deceased cannot be a ground to discard the testimony of such witness(s) unless previous enmity or is established on the record to falsely implicate the accused in the case.The concept of "interested witness" was discussed elaborately in case titled Iqbal alias Bala v. The State[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 complainant would not prefer to spare the real culprit and falsely involve the appellant without any rhyme and reason. In the present case the complainant apprehended the appellant just after occurrence at the spot but the absconding accused got him fled away from the clutches of the complainant.
8. The Statement of above PWs have been threshed out and we are of the considered opinion that reliance has rightly been placed on their statements being confidence inspiring by the learned trial Court. It is worth mentioning that the learned counsel for the appellant emphasizes on the contradictions which, according to him, escaped the notice of the trial Court, but failed to point out any of them. Even otherwise, it is a settled principle of law that minor contradictions or improvements in the statements of witnesses are to be overlooked and only material contradictions are to be considered. In this regard, reliance is placed on the case of Ranjha v. The State[2], wherein it has been held that: "The ocular testimony of quite independent witnesses duly supported by the medical evidence, the recovery of empties from the spot, the post-mortem report of the two deceased and prompt lodging of FIR without any deliberation and exaggeration as well as the attending circumstances was found truthful and confidence-inspiring therefore, the minor discrepancy and contradiction pointed out in the statement of witnesses being immaterial would be of no significance."
(Emphasis provided)
9. So far as the question of delay in sending crime empty and weapon to the Firearm Expert are concerned, admittedly, after disclosure the appellant himself has led the police party to the recovery of Pistol which as per report (Ex-P/9-F) has matched with the crime empty, therefore, mere delay in sending the recovered Pistol and empty in absence of evidence of tampering would not weaken the positive report Ex-P/9-F. In this regard, reference is made to the cases of Nizamuddin v. The State[3] and Muhammad Ashraf v. The State[4] Even otherwise, when we have found the testimonies of the witnesses of the ocular account to be trustworthy, straightforward and confidence inspiring, which is duly supported by the medical evidence, then recovery of weapon of offence has been held to be inconsequential, would not be of any benefit to the appellant.
10. In the light of foregoing reasons, we do find any substance in this appeal and same is accordingly dismissed.
1. 1994 SCMR 1