' RAJA FAYYAZ AHMED, C.J.--This criminal appeal has been directed against judgment, dated 27-10- 1999 passed by the learned Special Judge, STA Court, Nasirabad at Dera Murad Jamali in Special Case No,95 of 1999 whereby the appellants have been convicted under section 302 (b) and under section 324, P. P. C and respectively sentenced to life imprisonment each and to ten years' R.I. Each, directing that both the sentences to run concurrently. Benefit of section 382-B, Cr.P.C. Has been extended in their favour.
2. The brief facts of the case are that on the report of P.W. Noor Hassan case Crime No, 51 of 1998 was registered with Levies Thana Manho Shori, Tehsil Tamboo, District Nasirabad on 21-5-1998 at 8- 00 a.m. Under sections 302/324/34, P.P.C. Wherein informer Noor Hassan alleged, that on the preceding night his sister's son namely Shah Baldish son of Rustam and Pir Bakhsh son of Shah Bakhsh at about 8-30 p.m. Were on their way to house from Goth Ali Khan Umrani accused (i)
Todal alias Tota (ii) Ghulam Serwar (iii) Mehboob son of Shah Bakhsh (iv) Rehan (v) Al-Hinda son of Walhari (vi) Saifal son of Ghazi, who had waylaid, started firing no sooner Shah Bakhsh and Pir Bakhsh reached near to them -and as a result of firing Shah Bakhsh died on the spot, whereas; Pir Bakhsh was seriously wounded. It has further been stated in the report that their relative namely Umeed Ali and Ali Bakhsh who were thrashing wheat near to the spot, identified the abovesaid accused in the tractor light.
3. Consequent upon registration of the F.I.R., Naib Tehsildar, Tamboo namely Liaquat Ali (P.W.8) commenced with the investigation of the case, visited the place of occurrence, and after inspection of the place of wardat prepared sketch map of the same, recovered five empties of 12 bore shotgun and one empty of kalanikov vide inventory Exh.P/8-B. He. Also secured blood-stained earth near to the dead body of deceased Shah Bakhsh and also the blood-stained clothes of the deceased were taken into possession. The dead body was shifted to Civil Hospital, Usta Muhammad for post-mortem report, arrested both the appellants, whereas; the remaining nominated accused could not be arrested and were declared as proclaimed offenders. Also, during the course of investigation a shotgun single barrel was recovered on the pointation of accused Mehboob, and a separate case under section 13-E of the Arms Ordinance was registered against the said accused and after completion of investigation, incomplete. Challan Exh.P/8-D was submitted for trial of the offence against the accused.
' It may be noted that absconding accused namely Todal, Ghulam Serwar, Behan and Al-Hinda, though were declared as proclaimed offenders by the learned Special Court but were not tried in absentia.
4. The learned Special Court S.T.A. Hereinafter referred to as the trial Court indicted accused Saifai and Mehboob (appellants) for the commission of the above mentioned offence under sections 302/324/34, P.P.C. On 25-5-1999, to which they each pleaded not guilty and the prosecution to substantiate the accusation produced eight (8) witnesses. After close of the prosecution rase, both the said accused were examined by the learned trial Court under section 324, Cr.P.C. Wherein they each disputed and denied the incriminating pieces of prosecution evidence in toto and none of them opted to record statement on oath within the purview of section 340 (2), Cr.P.C. Nor produced any defence evidence. After close of the parties case, the learned trial Court vide impugned judgment convicted and sentenced the appellants as hereinabove mentioned.
5. Substance of prosecution evidence:-- ' Punhal son of Pecral, Levies Sawar, Tehsil Tamboo (P.W.I).
' On 1-2-1999 he was posted as Levies Sawar in Levies Thana, Manho Shori and on the same date early in the morning he alongwith other Levies personnel accompanied Tehsildar, Tamboo, who raided the house of accused Saifal situated in Goth. Jan Muhammad Umrani and the accused was found present inside the house and was arrested. Further, according to the witness during search a Kalashnikov was recovered from the heap of shall at a distance of 10/15 paces away from the house of the accused, about which according to the witness the said accused failed to produce any arms licence, consequently; the recovered Kalashnikov was taken into possession vide inventory prepared by the Tehsildar and produced by the witness as Exh.P/1-A bearing his signature as marginal witness of the recovery memo. The witness identified the Kalashnikov as article in Court and added that the accused was also arrested in the murder case.
' Noor Hassan son of Sher Muhammad, farmer, resident of Goth Qaboola, Tehsil Tamboo (P.W .2).
' According to this witness about fourteen months back when he was present in his house at 8-30 p.m., he was informed about the incident by Umeed Ali and Ali Bakhsh disclosing to him that they were working on the thrasher, when Shah Bakhsh was murdered and Pir Bakhsh was injured. The witness added that he was further informed by the witness that injured Pir Bakhsh and deceased Shah Bakhsh were on their way back from Goth Ali Khan Umrani to their house situated in Goth Jan Muhammad Umrani on a motorcycle and when they reached near to the place of occurrence, accused Todal alias Tota, Mehboob, Rehan, Ghulam Serwar, Al-Hinda and Saifal, who were armed with Kalashnikov and already had way laid them, started firing upon Shah Bakhsh and Pir Bakhsh, and as a result of firing Shah Bakhs was killed, whereas Pir Bakhsh was injured. According to the witness after the incident he went to the spot alongwith Umeed Ali and Ali Bakhsh and noticed that Shah Bakhsh has been murdered while Pir Bakhsh was lying in injured condition and he took the injured to Civil Hospital, Usta Muhammad and from there he went to Manjho Shori on motorcycle and lodged the report, produced by him as Exh.P/2-A. He .Stated that after registration of the accompanied the Tehsildar to the place of occurrence and also identified the accused Mehboob and Saifal as the culprits, in Court.
' Pir Bakhsh son of Shah Bakhsh, by caste Umrani (P.W.3).
' He has stated that about 13/14 months back at about 8-00/8-30 p.m. He alongwith his deceased father namely Shah Bakhsh were coming from Goth Ali Bakhsh to their house on a motorcycle and when they reached near to the lands of Ali Bakhsh, where Ali Bakhsh and P.W. Umeed Ali were working on the thrasher and they were stopped by the accused Todal alias Tota, so he (P.W. Pir Bakhsh) inquired from the said accused as to why they had been stopped (vernacular version), to which he answered that he had come for thrashing the wheat and their need/work has since finished, therefore, they are going back, so, according to the witness they asked him to move, but he (accused Todal) refused, and when they moved on, accused Todal alias Tota, Sarvar, Mehboob, Rehan, Al-Hinda and Saifal tired at them with Kalashnikovs and on turning the headlight of his motorcycle, he saw all the accused firing on them. According to the witness as a result of firing his father died on the spot and he was injured, whereafter, the accused ran away from the spot. The witness further added that Ali Bakhsh and Umeed Ali had seen the incident and had come to the spot, whereas; P.W. Ali Bakhsh and his other relatives took him to the - hospital while Umeed Ali remained present on the spot with the dead body. The witness explained that he remained in the Hospital, Usta Muhammad for a night and thereafter was shifted to Civil Hospital, Quetta and remained under treatment for a period of more than fifteen days. He also stated that his statement was recorded by the Tehsildar. He identified Mehboob and Saifal as accused in the Court.
' Umeed Ali son of Ali Nawaz, Cultivator, Goth Jan Muhammad Umrani (P.W.4).
' According to this witness on the day of incident at 8-00/8-30 p.m. He and Ali Bakhsh were working on their lands and in the meanwhile, they all of a sudden heard firing and according to him in the tractor light he saw that by means of Kalashnikov firing, accused Saifal, Mehboob, AlHinda, Rehan, Todal and Sarwar killed Shah Bakhsh and injured Pir Bakhsh. According to the witness thereafter, he and Ali Bakhsh went to the house of P.W. Noor Hassan and informed him about the incident, and thereafter, alongwith Noor Hassan returned to the spot. He added that Noor Hassan took the injured to the hospital While he and Ali Bakhsh remained present, and in the morning Tehsildar came to the place of incident and recorded his statement. He also identified Mehboob and Saifal, in Court.
' Dr. Salim Raza, Medical Officer, Civil Hospital, Usta Muhammad (P. W.5).
' His evidence is to the effect that on 21-5-1998 injured Pir Bakhsh son of Shah Bakhsh was brought to the Hospital by Naib Tehsildar, Tamboo for examination etc. And on examination he recorded findings in the M.L.C. Issued by him as Exh.P/5-A as under--- (1)Two fire-arm wounds on the right occipital region of skull 1/2 in diameter each wound.
(2)Fire-arm wounds on the posterior side of upper portion of the right hip bone 1/2 in diameter each wound.
' Note.--- Patient referred to Sandeman Provincial Hospital, Quetta on 21-5-1995 for further treatment and result is still not received.
' Nature of Injury No,1.---Grievous. Nature of Injury No,2.---Dangerous. Kind of weapon used.---Fire- arm. Duration of Injuries.---Fresh."
' Dr. Wajid Hussain, Medical Officer, Civil Hospital, Usta Muhammad (P.W.6).
' He deposed that on 21-5-1998 he was posted as Medical Officer, Civil Hospital, Usta Muhammad, on which date dead body of Shah Bakhsh son of Rustam was brought to the hospital by Naib Teshildar, Tamboo for post-mortem examination which was conducted by him and issued post- mortem report produced by him as Exh.P/6-A, bearing his signature and found the following injuries duly noted in the post-mortem report:- "(1) Entrance wound.---A fire-arm wound on the left temporal region 1/2 in diameter.
(2)Exit wound.---A fire-arm wound on the right occipital region 2" in diameter.
(3)A fire-arm wound on the right hip joint through and through size entrance 3" in diameter. Exit 4" in diameter."
' OPINION: ' By external as well as internal examination I am of the opinion that Death of the body resulted due to brain damage and internal brain haemorrhage caused by fire-arm wound. All injuries were ante-mortem in nature and homicidal in character caused by discharge from a fire arm. Probable time between Injury and Death. Instantaneously.
Probable Time between Death and Postmortem. 15-20 Hours, ' It is pertinent to note that P.Ws. Dr.Salim Raza and Dr. Wajid Hussain despite opportunity afforded to the learned defence counsel were not cross-examined.
' Shahbaz son of Jaffar, Levies Sawar, Levies Thana Majo Shori, Tehsil Tamboo (P.W.7).
' He deposed that accused Mehboob during the coarse of investigation, made disclosure to the Investigating Officer that he can effect recovery of the shotgun with which he committed the murder of Shah Bakhsh and pursuant to such disclosure in his presence he effected recovery of the shotgun to Naib Tehsildar Laiquat, who took the same into possession vide memo. Exh.P/7-A bearing his signature as the marginal witness. He also produced the shotgun as article in Court.
' Liaquat Ali Naib Tehsildar, Tamboo/Investigating Officer (P.W.8).
' According to him on <1-5-1998 at about 8-00 a.m. He registered F .1. R (Exh.P/2-A) on the report of informant Noor Hassan and thereafter, commenced with the investigation of the case. He produced the sketch map of wardat, prepared by him on site inspection, carried out by him in presence of the Levies officials, and; secured five empties of 12 bore shotgun and one empty of Kalashnikov vide memo. Exh.P/8-B produced by him besides blood-stained earth near to the dead body of deceased Shah Bakhsh, secured by him vide memo. Exh.P/8-C. He also took into possession the blood-stained clothes of deceased vide memo. Exh.P/8-D and produced the abovesaid empties, blood-stained earth and the bloodstained clothes as articles in Court. He removed the dead body of deceased to Civil Hospital, Usta Muhammad for post-mortem examination and recorded statement of injured Pir Bakhsh on the next day, and; arrested accused Mehboob from his house on 2-6-1998 and on 22-6-1998 on the pointation of accused Mehboob a shotgun single barrel was recovered and taken into possession vide inventory Exh.P/7-A produced by him as article, and also registered a separate case under section 13-E of the Arms Ordinance against accused Mehboob. He produced incomplete challan as Exli. P/8-D.
6. We have heard the learned counsel for the appellants as well as the Assistant Advocate- General, Balochistan. Mr. Tariq Mehmood contended that:---
(a) The prosecution has failed to establish charge against the accused/appellants beyond shadow of any reasonable doubt. Also recovery of the arms i,e, Kalashnikov and shotgun is extremely doubtful and even the prosecution failed to connect the recovered arms with the commission of the offence nor any positive finding about the recoveries has been recorded in the impugned judgment. The version of P.W. Noor Hassan/informant based upon the information received by him through P.W. Urnaid Ali is different to the one given by P.W. Umaid Ali and P.W. Pir Bakhsh injured. As per evidence of the prosecution the incident took place in the night during darkness hence identification of the appellants by the ocular witnesses in the given facts and circumstances of the case is extremely doubtful and the possibility of mistaken identification cannot be ruled out. The manner in which the alleged incident appears to have taken place does not find support from the medical evidence, as well as version of the ocular witnesses of the alleged incident is inter se inconsistent who also havemade substantially improvements in evidence which does not find necessary corroboration nor implicit reliance can be placed on the testimony of ocular witnesses.
(c) From the evidence of P.W. Noor Hassan who happens to be the relative of the ocular witnesses, it transpires that due to undisclosed nature of enmity, the appellants have been involved in the case.
(d) Medical evidence is in conflict with the ocular account.
(e) That learned trial Court on wrong appraisal and misreading of evidence recorded conviction of the appellants, who in the circumstances of the case are entitled to earn acquittal.
7. Mr. Ghulam Mustafa Mengal the learned Assistant Advocate-General raised the following points for consideration:---
(a) Ocular witnesses of the incident i,e, P.W. Umaid Ali and P.W. Pir Bakhsh (victim of the offence) fully implicated the appellants being responsible for the commission of the offence who besides other accused resorted firing on P.W. Pir Bakhsh and on the deceased as a result whereof Shah Bakhsh died on the spot, whereas; P.W. Pir Bakhsh suffered fire-arm injuries and their testimony despite lengthy cross-examination remained firm and consistent on all material particulars.
Evidence of P.W. Pir Bakhsh fits in the given circumstances of the case which is highly convicting and straightforward.
(b) Ocular account of the incident gets required support from the medical evidence which is not inconflict or inconsistent with the evidence of the ocular witnesses. Presence of P.W. Umaid Ali near to the place of occurrence and P.W. Pir Bakhsh being one of the victim of the offence subjected to murderous assault on the spot, cannot be over looked and identification of the appellants by these witnesses on spot respectively in the tractor light and headlight of the motorcycle excludes possibility of mistaken identification nor their evidence can be brushed aside merely because of inter se relationship or on account of the alleged undisclosed nature of enmity by P.W. Noor Hassan in cross examination.
(c) Non-proving of alleged enmity appearing as above said in the testimony of P.W. Noor Hassan per se would not be sufficient to discard the evidence of ocular witnesses.
(d) No part of the prosecution evidence has been misread or wrongly appraised by the learned trial Court which on proper assessm ent of evidence found the appellants to be guilty of the offence hence the impugned judgment is unexceptionable.
8. We have considered the contentions put forth on behalf of the parties in the light of the record of the case, gone through carefully. Including the impugned judgment, and; in order to come a just conclusion also we have independently re-appraised the entire evidence and in particular with reference to the contentions raised before us. It is the case of the prosecution that P.W. Pir Bakhsh and his father deceased Shah Bakhsh were on their way to house from Goth Ali Khan Umrani on a motorcycle being driven by P.W. Pir Bakhsh on 21-5-1998 and when they reached near to the lands of Ali Bakhsh and P.W. Umaid Ali were subjected to firing by the appellants and the other nominated accused as a result whereof deceased Shah Bakhsh sustained fatal shots and died on the spot whereas; P.W. Pir Bakhsh suffered fire-arm injuries. According to P.W. Dr. Salim Raza, Medical Officer, Civil Hospital, Usta Muhammad on 21-5-1998 injured Pir Bakhsh was brought to the hospital by P.W. Liaquat Ali, Naib Teshildar Tamboo for examination and treatment. According to the medical officer on examination he found that injured had suffered two fire-arm wounds on the right occipital region of skull 1/2" in diameter each wound and fire-arm wounds on the posterior side of upper portion of the right hip bone 1/2" in diameter each wound. After providing first aid, the injured was referred to Sandeman (Prov:) Hospital, Quetta for further treatment. Through the evidence of this witness it has been proved that P.W. Pir Bakhsh had suffered the above said fire- arm injuries which were fresh. According to Dr. Wajid Hussain, Medical Officer, Civil Hospital, Usta Muhammad P.W.6 on 21-5-1998, dead body of Shah Bakhsh son of Rustam was brought to the hospital by Naib Tehsildar, Tamboo for post-mortem examination an autopsy was conducted by him whereafter he issued M.L.C. Exh.P/6-A bearing his signature which shows that the deceased suffered fire-arm entrance wound on the left temporal region 1/2" in diameter and an exit fire-arm wound on the right occipital region 2" in diameter and a fire-arm wound on the right hip joint through and through entrance 3" in diameter within exit wound 4" in diameter. As per evidence of the Medical Officer the deceased died due to brain damage and internal brain haemorrhage caused by fire-arm and the death was instantaneous. None of the Medical Officers viz Dr. Saleem Raza (P.W.5) and Dr. Wajid Hussain (P.W.6) was subjected to cross-examination by the defence as such through unchallenged medical evidence, prosecution successfully proved that the deceased died instantaneously on receiving fire-arm injuries on his person as per Exh.P/6-A and P.W. Pir Bakhsh sustained fire-arm injuries as mentioned in the MLC (Exh-P/5-A).
9. Admittedly P.W. Noor Hassan is not the ocular witness of the incident to whom information about the incident was conveyed by P.W. Umaid Ali and Ali Bakhsh. In the report lodged by P.W. Noor Hassan he has alleged that on the preceding night his sister's son Shah Bakhsh and Pir Bakhsh son of Shah Bakhsh were subjected to firing by the nominated accused including the appellants at about 8-30 p.m. When they were on their way to house from Goth Ali Khan Umrani and as a result of firing Shah Bakhsh died and Pir Balchsh was seriously wounded. It was also stated in the report that his relatives Umaid Ali and Ali Bakhsh were thrashing wheat near to the spot who identified the accused in the Tractor light. It appears that such an information was also conveyed to P.W. Noor Hassan by Umaid Ali- and Ali Bakhsh that they were thrashing wheat near to the place of occurrence and they identified the accused in tractor light. Ali Bakhsh who statedly was present near to the place of occurrence and was thrashing wheat alongwith P.W. Umaid Ali has not been produced by the prosecution. P.W. Noor Hassan has given detailed account of Wardat as was conveyed to him by P.W. Umaid Ali and Ali Bakhsh, as compared to the one mentioned in the report lodged by him, in respect whereof reservation were expressed by the appellant's learned counsel.
From the evidence of P.W. Noor Hassan it appears that his house is situated at a distance of 250 paces from the place of occurrence who on receipt of information about Wardat promptly lodged report with the Levies Thana and thereafter alongwith Ali Bakhsh, Umaid Ali and the Naib Tehsildar proceeded to the place of Wardat where he found deceased Shah Bakhsh as dead and Pir Bakhsh in injured condition, thus; in such view of the matter non-mentioning of the details of Wardat statedly conveyed to him by the said persons would have no, Adverse effect on his evidence before the Couuit. Firstly; for the reason that he has not witnessed the Wardat and his evidence is based on the information conveyed to him by the said person out of whom Umaid Ali has been produced by the prosecution. Since direct testimony of P.W. Umaid Ali is available on record besides the evidence of the victim of offence namely Pir Bakhsh, therefore, non-mentioning of the details of Wardat by P.W. Noor Hassan in the F.I.R. Would not be of any significance and, moreover; it is not always expected that details of an incident to be necessarily mentioned in the report.
10. The case of the prosecution is mainly based on the direct testimony of P.Ws. Umaid Ali and Pir Bakhsh injured which can expose the appellants to criminal liability. According to injured Pir Bakhsh on the date of occurrence at about 8-00/8-30 p.m. He alongwith his deceased father namely Shah Bakhsh were coming to their house on a motorcycle from Goth Ali Khan Umrani and when they reached near to the lands of Ali Bakhsh and P.W. Umaid Ali who were working on the thrasher, and; were stopped by accused Todal alias Tota, therefore, he inquired from the said accused as to the reason of being stopped and in response Pir Bakhsh was told that he (accused Todal) had come for thrashing the wheat and the work has since been finished, therefore, they are going back, so, according to the injured he asked the said accused to move/go alongwith (vernacular version) but the accused refused and no sooner according to the witness they moved on, the convicts (appellants) and the other nominated accused resorted to firing on them by means of Kalashinkov and he turned the head light of the motorcycle and they identified the accused firing on them as a result whereof his father (Shah Bakhsh) died on the spot and he was injured. He also deposed that All Bakhsh and Umaid Ali witnessed the Warclat and the accused thereafter fled away and after that Umaid Ali, Ali Bakhsh and Noor Hasan came to the spot and he was taken to the hospital by Noor Hassan and other relatives, whereas; Umaid Ali and Ali Bakhsh remained on the spot with the dead body. He identified Mehboob and Saifal as the culprits in Court. The witness was cross- examined by the learned defence counsel on all the material particulars of his evidence from whom even details of the Wardat were also asked about and the answers given by the witness confirms to what he deposed in his examination-in-chief. He explained in cross-examination that Umaid Ali and Ali Bakhsh were at a distance of 10 paces from the place of Wardat and were working on a thrasher and that the accused are their co-villagers. The witness further in cross- examination stated that he is not aware as to the accused fired on them and they were fired from behind and prior to the occurrence they were on friendly terms with the accused. He explained that the motorcycle was being driven by him and that he saw that accused firing on them when he turned the motorcycle, however, when confronted to his statement under section 161, Cr.P.C. It has been found that he did not mention that all the accused were equipped with Kalashinkovs.
Undoubtedly from the evidence of P.Ws. Noor Hassan, Pir Bakhsh and Umaid Ali. It is evident that at the time of Wardat there was darkness and according to P.W. Noor Hassan there was moonlight and such answer has been invited from the witness in cross-examination. The case of the prosecution about the identification of the accused is not that the accused were identified in moonlight rather; as per evidence of P.W Pir Bakhsh and Umaid Ali they respectively identified the accused in the headlight of motorcycle and tractor. Evidence of the witness about identification could not be impeached or discredited in the cross. Examination nor the defence was able to show that the culprits fired from a considerable distance and thus, could not have been identified in a motorcycle headlight, rather; from the evidence of P.Ws. Pir Bakhsh and Umaid Ali it appears that firing was made from a nearby close/distance and moreover; the injured has specifically deposed that on turning his motorcycle he saw all the accused firing on them and such part of his evidence has not been challenged in cross-examination by the defence, who also in cross-examination stated that the accused are his co-villages and thus; it can be safely concluded that the appellants were well-known to the injured and their identification on spot by the injured in the headlight of the motorcycle cannot be disbelieved. Presence of the injured on spot along with his father on the motorcycle has also not been challenged or disputed by the defence and there is nothing on record to suggest that the injured falsely involved the appellants in the case and would let off the real culprits who killed his father and injured him seriously by means of firing, in asmuchas; the injured in cross-examination stated that they had friendly terms with the accused.
From the medical evidence as well it appears that the deceased was sitting behind the injured on a motorcycle who suffered fatal shots and died, whereas; the seat of wounds suffered by P.W. Pir Bakhsh show that he was driving the vehicle and thus, in our considered view medical evidence also lends support to the version of the injured as regards the narration of the events by the injured, is concerned. We are not convinced that medical evidence is inconsistent or does not support to the ocular account of the injured. It has come on record that injured did not mention in his statement under section 161, Cr.P.C. That all the accused were equipped with Kalashnikov but omission on the part of the injured to mention about such fact in his earlier statement would not be sufficient to discard or discredited his evidence in absence of any strong motive or reasons, wanting in the case and secondly from the medical evidence and the nature of injuries suffered by the deceased and by the injured it can be safely concluded that the culprits were equipped with fire-arms by means of which fatal shots were fired on the deceased and fire-arm injuries received by P.W. Pir Bakhsh. From the evidence of P.W. Liaquat Ali Naib Tehsildar/Investigating Officer it appears that during inspecting of place of Wardat he secured 12 empties of 12 bore shotgun and one empty of Kalshnikov vide memo. Exh.P/8-B and such a disclosed fact suggests that firing was also made from a shotgun but as per medical evidence no pellet injury was sustained by either of the victims of the offence which prudently leads to believe that the Investigating Officer was not honest in the conduct of investigation because if 12 shots were fired from a shotgun on the victims very close to the place of Wardat from where the empties of shotgun were recovered, necessarily either of the victims must have had suffered at least any injury caused by pellet, fired from shotgun hence we are of the view that recovery of empties of shotgun, 12 in numbers from the place of Wardat would not have any adverse effect on the direct testimony of the victims of the offence (P.W. Pir Bakhsh).
According to P.W. Shahbaz Levies Sawar and the Investigating Officer on pointation of accused Mehboob (convict) shotgun was recovered from bushes and was taken into possession by Naib Tehsildar vide memo. Exh.P/7-A. Recovery of the shotgun even if believed to have been made on the pointation of the accused Mehboob pursuant to his disclosure would remain inconsequential for the reason that the alleged recovered empties of shotgun from the place of Wardat and the shotgun was not sent to the fire-arm expert for examination and, therefore, apart from the recovery of shotgun being doubtful, it cannot be said that the empties of shotgun even if believed to have been recovered from the place of Wardat, were fired from shotgun, consequently; for such reason, we are left with no option but to hold that recovery of the empties of shotgun and the shotgun as per evidence of the Investigating Officer and P.W. Shehbaz (Levies Sawar) in no way improves or has any effect on the case of the prosecution or of defence.
11. The other important ocular witness produced by the prosecution is P.W. Amir Ali and his evidence is to the effect that on the date of occurrence 8-00/8-30 a.m. He and Ali Bakhsh (not produced) were doing work on the land when all of a sudden they heard fire reports and saw in the tractor headlight that the nominated accused including the appellants killed Shah Bakhsh by means of firing and caused injuries to Pir Bakhsh whereafter he and Ali Bakhsh went to the house of Noor Hussan and informed to him about the incident and they along with Noor Hassan came to the place of Wardat from where Noor Hassan took the injured to Hospital while he and Ali Bakhsh remained on spot with the dead body. He also identified accused Mehboob and Saifal as culprits in the Court and stated that on the morning Tehsildar came to the place of incident and recorded his statement. In cross-examination by the defence it has been brought on record that the witness did mention in his earlier statement under section 161, Cr.P.C. That he and Ali Bakhsh were working on thrasher and that they both left to inform P.W. Noor Hassan about the incident and that all the accused were armed with Kalashinkovs. Also witness in cross-examination to a specific question put to him by the defence answered that after receiving injuries P7W. Pir Bakhsh was in senses and that all the accused made firing from behind, however; he stated that he cannot mention about exact distance from which the accused made firing. On close scrutiny of the evidence of P.W.
Umaid Ali it transpires that in his presence on the spot, is not disputed by the defence who withstood the test of cross-examination firmly. The witness specifically nominated all the accused including the appellants to be responsible for firing made on the deceased and P.W. Pir Bakhsh as a result whereof deceased Shah Bakhsh died on the spot and P.W. Pir Bakhsh received fire-arm injuries. Also the version of this witness found support from the testimony of P.W. Pir Bakhsh and P.W.
Noor Hassan that P.W. Umaid Ali alongwith Ali Bakhsh came to his house and informed him about the incident whereupon he alongwith the said persons came to the spot and removed P.W. Pir Bakhsh to the hospital with the help of other relative, whereas; Shah Bakhsh was found lying dead on the spot. Although; P.W. Umaid Ali stated in cross-examination that he cannot disclose about the exact distance from which the accused made firing but non-mentioning of the exact distance in the given facts and circumstances of the case would not have any adverse effect on his evidence as the fact remains that he saw the accused having made firing on the deceased and the injured. Moreover, identification of the accused in the headlight of the tractor by P.W. Umaid Ali has also not been challenged by the defence, therefore, there remains hardly any room to disbelieve this evidence about the identification of the accused nor even presence of P.W. Umaid Ali near to the spot on his own lands at the relevant time can be doubtful. Also P.W. Pir Bakhsh categorically deposed that when he on a motorcycle alongwith his father reached near to the lands of P.W. Umaid Ali and Ali Bakhsh where they working on the thrasher remained undisputed by the defence and thus; from the evidence of injured as well it appears that at the relevant time when incident took place P.W. Umaid Ali and Ali Bakhsh (not examined) were present on their lands and were working, therefore, in all probabilities, Umaid Ali having witnessed the incident cannot be disputed nor his evidence can be excluded merely for the reason that he happens to be the relative of the deceased. It is pertinent to note that P.W. Noor Hassan in cross-examination stated that Shah Bakhsh was killed and Pir Bakhsh was injured because of enmity but no further detail or about the nature of the enmity was asked about or suggested by the defence and such a disclosed fact by the witness in cross-examination at best would be inferential and would not be treated as a motive of the crime set up by the prosecution. Secondly; nothing about stated enmity has been suggested to P.W. Pir Bakhsh (injured) or to P.W. Umaid Ali by the defence rather on a question put by the defence, P.W. Pir Bakhsh stated that they were on friendly terms with the accused prior to the occurrence and, . Therefore, mentioning about undisclosed nature of enmity P.W. Noor Hassan in cross-examination would not be enough any material significance in view of the direct testimony of the above said witnesses which in all probabilities fit in the given facts and circumstances of the case and also appear to be true. It is noteworthy that the appellants did not opt to record their statements on oath nor produce any defence evidence hence in absence of any material produced by the accused it cannot be safely concluded that on the basis of previous enmity the appellants were involved in the case. Also the prosecution witness namely Noor Hassan in cross-examination stated that when he reached to the place of Wardat injured Pir Bakhsh was unconscious but medical evidence does not, support to such a fact by the witness and Secondly no suggestion of the point was put to the injured by the learned defence counsel rather P.W. Umaid Ali was asked about the same who stated that Pir Bakhsh even after sustaining injuries was in his sense. Assuming for a moment that after receiving injuries P.W. Pir Bakhsh got unconscious, would remain inconsequential because not being in senses after receiving injuries would not be enough to conclude that P.W. Pir Bakhsh did not identify or could not have identified the culprits.
12. From the evidence of P.W. Muhammad Usman/Tehsildar Tamboo who took over the charge of the office on 1-2- 1999 arrested accused Saifal from his house situated in Goth Jan Muhammad Umrani and during search of his house a Kalashinkov was recovered from the heap of paddy crops lying in front of his room and took the same in possession vide memo. Prepared by the witness but the prosecution failed to connect the recovered weapon with the commission of the crime because a Kalashinkov empty secured by P.W. Liaquat Ali Naib Tehsildar/Investigating Officer from the place of Wardat and the Kalashinkovs were not sent for examination and report to the fire-arm expert. The recovery of the shotgun and the Kalashinkov are insignificant and lends no support of the prosecution as corroboratory piece of evidence hence for such reason as we considered, the learned trial Court did not attach any importance to the recovery of arms, P.W. Liaquat Ali/Investigating Officer also secured blood-stained earth from near to dead body of deceased found lying on the place of Wardat which piece of circumstantial evidence furnishes a limited corroboration as it reflects from such evidence.
In our considered view the learned trial Court on proper appraisal and assessment of the prosecution evidence appropriately found the appellants to be guilty of the offence hence the impugned judgment is not exceptionable. Consequently; in view of the above discussion and reasons this appeal being without any substance is dismissed.