IN THE HIGH COURT OF SINDH, BENCH
AT SUKKUR.
Appellant:
Ghulam Murtaza Shah @
Amanullah Shah son of Ali Shah, bycaste Syed, Resident of Drgah Abdul Raheem
Shah adjacent Anwara Abad Ghotki, presently confined at Central Prison Sukkur
Through Mr. Mushtaque Ahmed
Shahani, Advocate.
Complainant: Through
Mr. Abdul Samad Noonari, advocate.
The State: Mr. Zulifqar Ali Jatoi, Additional Prosecutor General
Date of hearing: 24-03-2022
Date of judgment: -04-2022.
J U D G M E N T
Amjad Ali
Sahito, J.- Through instant Crl. Appeal, the
appellant named above has impugned the judgment dated 14-09-2019 passed by learned Additional Sessions Judge-I/MCTC
Ghotki, in Sessions Case No. 359/2010 (Re. The State Vs. Ghulam Murtaza Shah
& others, offence u/s 302, 148, 149 PPC, bearing Crime No. 156/2010
registered at Police Station Ghotki, whereby the appellant/accused named above
has been convicted and sentenced under section 302(b) r/w section 34 PPC to
suffer rigorous imprisonment for life as Tazir and to pay fine of Rs. 500,000/-
(Rupees five lacs), if the amount is deposited by him, it shall be paid to the
legal heirs of the deceased in shape of compensation, in case of default, he
would undergo simple imprisonment for 6 (six) months more with benefit of
Section 382-B Cr.P.C.
2. Brief facts of the prosecution case are
that complainant Syed Ashique Ali Shah lodged the FIR on 10-04-2010 alleging
therein that Mumtaz Ali aged about 40 years was his brother and serving as
Sepoy bearing B.No.3660502, 214, Signal
Core Company, 28 Signal Batalian in Pakistan Army and was deployed at Marri,
who had come to their house, at early in the morning. On the day of report
complainant along with Mumtaz Ali Shah, his nephew Mujahid Shah and their
follower (Mureed) Arbelo Jiskani were available at the Dargah of Abdul Rahim
Shah, for the purpose of funeral and burial ceremony of their elder brother Syed Ahmed Shah, where at about 1230
hours, they found accused, namely, Ali Shah son of Abdul Rahim Shah, Ghulam
Murtaz Shah son of Ali Shah armed with DBBL guns, Abdul Rauf Shah alias
Karamullah Shah son of Hussam-ud-Din Shah with gun, Ghulam Nabi Shah son of Abdul Rauf Shah
alias Karamullah with country made pistol, Manzoor Shah son of Abid Shah empty
handed, came there, while challenging, they expressed that Mumtaz Ali Shah used
to quarrel with them over land,
hence they would kill him today. By saying so, accused Ali Shah straightly
fired with his gun
upon Mumtaz Ali Shah with intention to kill him, which hit on his left forearm
(Doro). Accused Ghulam Murtaza Shah straightly fired with his gun upon Mumtaz
Ali Shah, which hit at back of his chest. Accused Abdul Rauf Shah alias
Karamullah Shah made straight fire with gun, which hit to Mumtaz Ali Shah on
his flank (Kukh), and he fell down, while raising cries. Then all the accused
persons ran away while raising slogans. After escape of accused, the
complainant had noticed that Mumtaz Ali Shah had sustained injuries at right
side of back of chest, right side of flank (Kukh), and upper arm of left
muscle, which were through and through, blood was oozing and he was lying dead.
Thereafter, complainant with the help of PWs took dead body of deceased to
Taluka Hospital Ghotki for postmortem, where, he left the dead body and went
to P.S. Ghotki and lodged the FIR.
3. After usual investigation, 1/0 had submitted the challan u/s 173 Cr.P.C against the accused
named above, by showing accused Ali Shah and Ghulam Murtaza Shah as absconders,
while the names of the accused Abdul Rauf Shah, Ghulam Nabi Shah and Manzoor
Ahmed were placed in column No.2, but learned IInd Civil Judge & Judicial Magistrate, Ghotki joined them as accused vide order dated 25-05-2010.
The NBWs were ordered to be issued against
them, subsequently, accused Ghulam Murtaza Shah was arrested and such subsequent
report received to the Court concerned on 21-07-2010. After initiating the legal
formalities, the absconding accused were declared as proclaimed
offenders.
After getting bail before arrest
from the Court of learned Ist Additional Sessions Judge Ghotki, accused Ghulam
Nabi Shah appeared before Court and joined the trial. The R & Ps were sent
to the Court of learned 1st Additional Sessions Judge/(MCTC) Ghotki
by way of transfer by the Court
of learned Sessions Judge, Ghotki on 28-10-2010.
As per record, initially
the documents were supplied to the accused Ghulam Murtaza Shah and Ghulam Nabi
Shah under receipt at Exh.4 and then charge against them was framed, to which,
they pleaded not guilty and claimed to be tried vide their pleas recorded at Exh.6 & 7. In order
to prove the charge against accused, the prosecution has examined PW-1 ASI
Muhammad Aslam, at Exh.8, who produced FIR at Exh.8/A. Thereafter, due to
non-appearance of complainant and PWs the
case was kept in abeyance vide order dated 30-03-2016. Subsequently, accused Abdul Rauf Shah
and Manzoor Ahmed Shah,
after grant of bail from the Court of learned Sessions Judge, Ghotki appeared
before the Trial Court on 28-08-2017 and joined the trial, but the accused Raul
Shah had chosen to remain absent as per diary dated 28-09-2017, later-on he was
declared as proclaimed offender. Record further shows, that the case papers were supplied to accused Manzoor
Ahmed Shah under receipt at Exh.11 and the case was reopened. The Court of
learned 1st Additional Sessions Judge, Ghotki on establishing being
Model Criminal Trial Court (MCTC)
for expeditious disposal of this case, hence the amended charge against accused
Ghulam Murtaza Shah, Ghulam Nabi Shah and Manzoor Ahmed Shah was amended on 25-04-2019,
at Exh.12, to which they pleaded not guilty and claimed to be tried, vide their
pleas at Exh.13 to 15, respectively. Record reflects that learned State counsel
had given up PW Mujahid Shah vide his statement dated 25-04-2019 at Exh.16. The
prosecution has examined PW-1
complainant Ashique Ali Shah at Exh.20, who verified FIR, which was already
produced at Exh.08/A and produced receipt of receiving the dead body of
deceased at Exh.20/A. PW/2 Arbelo Jiskani examined at Exh.21, who produced
Mashirnama of inspection of dead body at Exh.21/A, Mashirnama of place of wardat at Exh.21/B, Mashirnama of last
worn clothes of deceased at Exh.21-C. PW/3 author of FIR, ASI Muhammad Aslam examined
at Exh.22. PW/4 Tapedar Nazir
Ahmed at Exh.23, who produced the sketch of wardat at Exh.23/A. PW-5 corpse bearer PC Abbas Ali at Exh.24, who verified the
receipt, through which he had handed over the dead body to complainant
under proper receipt, which was already produced at Exh.20/A, PW/6 10 SIO
Rustam Ali at Exh.25, who produced Danistnama at Exh.25/A, letter through which
10 had sent dead body to MO for
conducting postmortem at Exh.25/B, Mashirnama of recovery of DBBL gun and one
live bullet, left by the accused at Exh.25/C, entry No.21 at Exh.25/D, PW-7 Dr. Muhammad Hassan Shah, the MO,
at Exh.26, who verified the letter through which dead body was referred to him for postmortem,
which was already produced at Exh.25/D, he produced postmortem report of deceased at
Exh.26-A, PW-8 Mashir PC Noor
Muhammad at Exh.27, who produced Mashirnama of arrest of accused at Exh.27/A.
Thereafter, the learned DDPP for the state has closed the side of prosecution
vide his statement at Exh.28.
4.
The accused in their statements under
section 342 Cr.P.C,
at Exh.29 to 31, had denied the allegations and pleaded their innocence. Accused Ghulam
Murtaza Shah has produced Primary School Leaving Certificate issued by Govt.
Boys Primary School Anwarabad, at Exh.29/A. Accused Ghulam Nabi Shah produced
certified true copy of Judgment dated 23-08-2011 passed by learned Il-Civil
Judge & Judicial Magistrate,
Ghotki vide
Exh.30/A. Accused Manzoor Ahmed Shah had produced certain documents i.e.
application at Exh.31/A, letter to DPO Ghotki at Exh.31/B, application to DPO
Ghotki at Mirpur Mathelo, at
Exh.31/C, report of TPO at Exh.31/D, two applications at Exh.31/E & F, FIR
NO.90/2009 at Exh.31/G, FIR No.65/2009
of PS Ghotki at Exh.31/H, copy of NC at Exh.31/I, application dated 13-07-2006
at Exh.31/J, copy of private Faisla at Exh.31/K, copy of Judgment
dated 15-12-2011 at Exh.31/L. However, they did not opt to examine themselves on oath
but to lead defense evidence in their defence, all the accused examined DW
Mujahid Shah at Exh.32. The accused persons have took plea that they have
falsely been involved in this case due to dispute with complainant over landed
property. Thereafter, the
learned Advocate for accused closed the side of accused vide his statement
dated 19.08.2019 at Exh.33.
5. The
learned Trial Court, after hearing learned counsel for the parties and appraisal
of the evidence, convicted and sentenced the appellant/accused as stated above
by extending the benefit of section 382-B Cr.P.C vide judgment dated 14-09-2019. The conviction and sentence
recorded by the learned trial Court are impugned by the appellant before this
Court by way of filing instant Crl. Appeal.
6. Learned advocate for the appellant/accused
argued that there was delay of about 1 hour and 35 minutes in lodgment of FIR
and such delay has not been explained by the complainant; that all the witnesses
cited in the case are close relatives of the complainant and they interested
witnesses, while PW Arbelo is follower (Mureed) of complainant and they had been setup on account of
dispute over landed property, which was going on in between accused Ali Shah
and the complainant party; that there are so many contradictions and
improvement in the evidence of complainant
and eye witnesses, but learned trial Court has not given weight to it; that PW
Mujahid Shah, who had been won over by the accused party and was given up by
the learned state counsel and the accused have examined him in capacity of
defence witness, who disowned entirely about the happening of this incident in
his presence and in cross-examination he denied a suggestion that on 10-04-2010, accused Ali Shah, Ghulam
Murtaza and Abdul Rauf Shah had directly fired from their guns upon Mumtaz Shah
in front of him; that trial Court has miserably failed to appreciate and assess
the evidence which has been given by the prosecution against the appellant;
that prosecution has miserably failed to bring the charge against the appellant
and the impugned judgment is not based on the correct appraisal of the evidence
and it is based on presumptions and assumptions; that there were material contradictions in between
ocular and medical evidence and postmortem was conducted with delay, hence he
pray that appellant is liable for his acquittal. He placed his reliance on the
cases of Muhammad Asif Vs. he State (2017 SCMR 486), Muhammad Akram Vs. The
State (2009 SCMR 230), Ziaullah Vs.
The State and others (2018 P.Cr.L.J
1104), Abdi Azeem and others Vs. The State and others (2018 P.Cr.L.J Note 205) and
Liban Shah Vs. The State (2016
P.Cr.L.J Note 111).
7. Learned
APG for the State assisted by the learned counsel for the complainant argued
that appellant is named in the FIR with specific role; that complainant Ashique
Ali Shah and Arbelo Jiskani are the eyewitnesses of the incident, who have
fully supported the case of the prosecution; that the medical evidence was in consistency
with the version of the
complainant and P.W, which was
corroborated by the recovery of four empty cartridges of 12 bore; that no doubt
PW Mujahid Shah was given up by the prosecution as he was won over by the
accused party, but on the basis of his statement, the accused cannot be
declared as innocent. He lastly prayed that the learned
trial Court has rightly appreciated the evidence while recording conviction and
sentence of the appellants in accordance with law and thus the lastly prayed
for dismissal of the instant Crl. Appeal.
8. I have heard learned
counsels for the parties and perused the record.
9. On the evaluation
of the material brought on the record, it appears that the case of prosecution solely
depends upon the ocular and circumstantial evidence
adduced in the shape of evidence of the complainant as well as eyewitness
Arbelo Jiskani, Investigating officer, Medical Officer and other witnesses of
the case. To prove the case, the prosecution has examined complainant Ashiqu
Ali Shah and eyewitness Arbelo Jiskani. All the above witnesses with one voice
narrated the story which was disclosed by the complainant in the FIR and P.Ws
in their 161 Cr.P.C statements that on the day of
report, when complainant along with Mumtaz Ali Shah, his nephew Mujahid Shah
and their follower (Mureed) Arbelo Jiskani were available at the Dargah of
Abdul Rahim Shah, for the purpose of funeral and burial ceremony of their elder
brother Syed Ahmed Shah, where
at about 1230 hours accused Ali Shah, Ghulam Murtaz Shah armed with DBBL guns,
Abdul Rauf Shah alias Karamullah Shah with gun,
Ghulam Nabi Shah with country made pistol, Manzoor Shah empty handed, came
there, while challenging, they expressed that Mumtaz Ali Shah used to clah with
them over land, hence they
would kill him today. By saying so, accused Ali Shah straightly fired with his gun upon Mumtaz Ali Shah, which hit on
his left forearm (Doro). Accused Ghulam Murtaza Shah straightly fired with his
gun upon Mumtaz Ali Shah, which hit at back of his chest. Accused Abdul Rauf
Shah alias Karamullah Shah made straight fire with gun, which hit to Mumtaz Ali
Shah on his flank (Kukh), and he fell down, while raising cries. Then all the
accused persons ran away while raising slogans. After escape of accused, the
complainant had noticed that Mumtaz Ali Shah had sustained injuries and he was
lying dead. In order to support the contention of the complainant, the prosecution
examined PW/eyewitness Arbelo Jiskani, who is also mashir of the case has
produced a memo of examination of the dead body, memo of inspection of the scene
of the offence, memo of recovery empty cartridges and the memo of blood-stained
cloth of deceased Mumtaz Ali Shah, the said memos were produced at Exh.21/A to
21/C. He has also confirmed that he and in presence of co-mashir Bashir Ahmed
Shah. The complainant and eyewitness were
cross-examined by the defence at length wherein the learned counsel for the
defense asked multiple questions to shatter their confidence but he could not
extract anything from any of the said witnesses, who remained consistent on all
material points. The parties are known to each other, so there was no chance of
mistaken identity of the appellant.
10.
In the instant matter, the complainant as well as eyewitness
has sufficiently explained the date, time, place of incident, manner of
occurrence, and involvement of the appellants. There can be no denial to the
legally established principle of law that it is always direct evidence that is
material to decide the fact and to prove the charge. Insufficient,
contradictory, discrepant direct evidence is deemed adequate to hold a criminal
charge as not proved but where direct evidence remains in the field with that
of its being natural and confidence-inspiring then the requirement of
independent corroboration is only a rule of abundant caution and not a
mandatory rule to be applied invariably in each case.Reliance may be placed
upon the case of Muhammad Ihsan v. The State (2006 SCMR 1857) wherein
the Apex Court has held that:
“5. It be
noted that this Court has time and again held that the rule of corroboration is
rule of abundant caution and not a mandatory rule to be applied invariably
in each case rather this is settled principle that if the Court is
satisfied about the truthfulness of direct evidence, the requirement of
corroborative evidence would not be of much significance in that, as it may as
in the present case eye-witness account which is unimpeachable and
confidence-inspiring character and is corroborated by medical evidence.”
11. From the perusal of the evidence of the
complainant and eyewitness, it appears that they cannot be termed as chance
witnesses rather would fall within the category of natural witnesses, deceased Mumtaz
Ali Shah was the real brother of the complainant, who used to live with him.
The presence of the complainant and PW Arbelo is not disputed and both the
witnesses i.e complainant and Arbelo are natural. It may be added here that the
status of one being a natural witness would never unnecessarily stand to be the
witness of truth but always to the satisfaction of the Court. For which
witnesses have given the detail of the incident in a manner that is believable
to a prudent mind. Reliance in this regard is placed on the case of Abid
Ali and 02 others v. The State (2011 SCMR 208) wherein the
Apex Court has held that:
“21. To believe
or disbelieve a witness all depends upon intrinsic value of the statement made
by him. Even otherwise, there cannot be a universal principle that in every
case interested witness shall be disbelieved or disinterested witness shall be
believed. It all depends upon the rule of prudence and reasonableness to hold
that a particular witness was present on the scene of crime and that he is
making true statement. A person who is reported otherwise to be very
honest, above board and very respectable in society if gives a statement, which
I illogical and unbelievable, no prudent man despite his
nobility would accept such statement”.
12. The direct evidence also finds support from the
medical evidence concerning the cause of death of deceased Mumtaz Ali Shah so
also the time of the incident. It is established from the evidence of Senior Medical
Officer Dr. Muhammad Hassan Shah PW/7 who deposed that on 10-04-2010 he was
posted as Medical Officer, in Taluka Hospital Ghotki. On the same day, he had
received a dead body of deceased Mumtaz Ali Shah referred by PS Ghotki through
PC-2079 Abbas Ali Jhatiyal of PS Ghotki vide letter o. 156 dated 10-04-2010 for
postmortem examination and report. He had started the post-mortem at 2:10 pm
and finished it at 3:15 pm on the same date. The dead body was identified by
Ashique Ali Shah (brother of deceased) and Mujahid Shah (relative of the
deceased). The dead body was of a made Muslim, with average built, aged about
40 years. The postmortem lividity and rigour mortis were developing. The
deceased was wearing white colour shalwar and kamis stained with blood. On
external examined, he had found following injuries on the person of deceased.
1. One lacerated punctured firearm injury size
of 1 cm in diameter circular shaped with inverted margins (wound of entrance).
On right side of back of chest (chest cavity deep), the wound was through and
through, making wound of exit size 2 cm in diameter on
right front of chest.
2. One lacerated punctured fire arm injury size of 1 cm in diameter with inverted margins
(wound of entrance). Cavity deep on right lateral and lower part of chest. The
wound was through and through, making wound of exit size of 2 cm in diameter on
left front of abdomen.
3. One lacerated punctured fire arm injury size of 1
cm in diameter on lateral aspect of left deltoid region of left upper arm.
Wound was through and through, making wound
of exit size of 2 cm in diameter on internal surface of left upper arm and then
entering chest cavity laterally.
On
internal examination of dead body of deceased, he found following organs were
damaged:
Chest
wall, pleurae, larynx, trachea, right and left lung, blood vessels,
abdominal walls, diaphragm, peritoneum, small and large intestines, pancreas,
liver, kidneys were damaged, while rest of the organs were found healthy.
The
injuries were ante-mortem in nature. The fracture of right scapula and right
fifth rib were present. The probable time that elapsed between the injuries and
death was instantaneous and the time elapsed between the death and post-mortem
was about two hours,
From external
as well as internal examination of deceased Mumtaz Ali Shah, medical officer
opined that death had occurred due to shock and hemorrhages consequent upon
injuries caused by discharge from fire arm.
All
the injuries were fatal and sufficient to cause the death in ordinary course of
nature, thus, this also
corroborates the ocular testimony furnished by the complainant and
eyewitnesses. The reliance is placed upon the case of Zahoor Ahmed Vs. The State (2017
SCMR 1662), wherein the
Honourable Supreme Court of Pakistan has held that:
“4. The ocular account,
in this case, consists of Muhammad Khan complainant (PW-06) and Shahbaz
(PW-07). They gave the specific reasons of
their presence at the place of occurrence as, according to them, they alongwith the deceased
were proceeding to harvest the sugarcane crop. Although they are related to the
deceased they have no previous enmity or ill-will against the appellant and
they cannot be termed as interested witnesses in the absence of any previous
enmity. They remained consistent on each
and every material point. The minor discrepancies pointed out by the learned
counsel are not helpful to the defense because with the passage of time such discrepancies are bound to occur. The occurrence
took place in broad day light and both
parties knew each other so there was no mistaken identity and in absence of any
previous enmity, there could be no
substitution by letting off the real culprit specially
when the appellant alone was responsible for the murder of the deceased. The
evidence of two eyewitnesses was
consistent, truthful and confidence inspiring. The medical evidence fully
supports the ocular account so far the injuries received by the deceased, time
which lapse between the injury and death and between death and postmortem. Both
the Courts below have rightly convicted the appellant under section 302(b),
PPC.
13. In order to strengthen the
case, the prosecution has also examined
SIP Rustam Ali, who has investigated the matter, conducted all the formalities
and after completing of the investigation, he has submitted the challan before
the Court of law. He deposed that he was posted as an SIO in Investigation Branch
at PS Ghotki. On 10-04-2010, he was posted as an SIO in Investigation Branch at
PS Ghotki. On the same day, he had received the FIR copy of this case, through
ASI Muhammad Aslam Soomro for further investigation. Thereafter he along with
complainant and subordinate staff came to the
Taluka
Hospital Ghotki, where he inspected the dead body
of deceased Mumtaz Ai Shah which was lying in mortuary of the Hospital and
found that deceased had fire arm injuries on his body. He prepared such
Mashirnama in front of the Mashirs Arbelo Jiskani and Bashir
Ahmed Shah and obtained their signature and LTI thereon. He saw such Mashirnama, which
is already produced at Exh.21-A and say that it is same, correct and bears his
signature. He had also prepared Danistnama and lash chakas form. He produced
Danistanama at Exh.25-A and say that it is
same correct and bears his signature. He also produce Lash chakas form at
Exh.25-B and say that it
is same,
correct and
bears his signature. Thereafter, he handed over the lash
chakas form and dead body to the PC Abbas Ali Jhatyal for conducting the post-mortem,
thereafter, he along with complainant and sub-ordinate staff visited the place
of incident on the pointation of complainant and prepared such Mashirnama in
front of the same Mashirs, he saw such Mashirnarna at Exh.21-B, and say that it
is same correct and bears his signature. From the place of the incident he had
secured blood stained earth and 4 empty cartridges of 12 bore, which were
sealed by him at the spot separately. Then they returned at the PS where PC
Abbas Ali Jhatyal handed over to him the blood stained clothes of the deceased,
which were sealed by him and prepared such Mashirnama in front of the same
Mashirs and obtained their signatures thereon.
He see such Mashirnama which is already produced at
Exh.21-C and say that it is same, correct and bears his signature. He had recorded
161 Cr.P.C statement of
of the eyewitnesses. On 16-05-2010 he had recorded the 161 Cr.P.C statements of the independent
witnesses, namely Bandhi Khan, Usman Shah and Shahid, who exonerated
Abdul Rauf Shah, Manzoor Shah and
Ghulam Nabi Shah. On 17-05-2010, he had recorded 161 Cr.P.C statements of two more independent
witnesses, namely Ali Bux Gadani
and Muhammad Mithal Gadani,
who had also exonerated the same three accused and declared them innocent.
On the same day vide Roznamcha entry No.21
at 1815 hours, they left the PS for investigation of
this case, during which complainant
Ashique Shah met with him at Mathelo Chowk, who informed him
that wanted accused namely Ali Shah and his son Murtaza Shah were coming to their houses, they
spotted two accused, who were identified by the complainant to be Murtaza Shah and Ali Shah. Out of
them, accused Ali Shah was armed with gun, and when they tried to arrest them, both the
accused succeeded in fleeing away throwing the same gun there, and such gun was
taken into possession by him and same was unloaded and found one
live cartridge lying in it. He sealed the
recovered gun at spot and prepared such Mashirnama in front of Mashirs
namely HC Abid Ali and PC Abbas Ali and obtained their signatures thereon. He
produced attested PS copy of such Mashirnama at Exh.25-C and said that
it is same, correct and bears his signature. He then returned at PS along with
recovered gun, where he lodged the FIR u/s
13 (d) AO on behalf of the state. He also produced entry No.21 at Exh.25-D, and
said that it is same and correct. After completing investigation of this case he
had submitted the challan before the court of competent jurisdiction. He
recognized that accused Murtaza Shah present in the court, and case property
viz. Blood stained earth, 4 empty cartridges, gun and live cartridge lying in
the court are same.
14. The appellant named above in
his statement recorded under section 342 Cr.P.C denied the allegations levelled
against him by stating that he is innocent and prayed for justice. He produced Primary
School Leaving Certificate issued by Govt. Boys Primary School Anwarabad. However, he did
not opt to examine himself on oath but examined DW Mujahid Shah as defense
witness. The accused persons have took plea that they have falsely been
involved in this case due to dispute with complainant over landed property.
15. I would mention here that the deceased was the real brother of
the complainant, normally the possibility of substitution of accused become
rare by leaving the actual persons and involving other persons, thus no material
has been brought on record by the appellant to show the deep-rooted enmity
existed earlier between the parties, which could have been the reason for his
false involvement in this case. Reliance in this respect is placed in the case
of Lal Khan v. State (2006SCMR 1846) Farooque Khan v. The State (2008 SCMR
917), Zulifqar Ahmed and others v.The State (2011 SCMR 492) so also
case of Zahoor Ahmed v. The State (2007
SCMR 1519) wherein Hon’ble Apex Court discussed 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.
16. Considering
the above facts and circumstances, I have concluded that the prosecution has
successfully established its case against appellant Ghulam Murtaza Shah through
ocular account furnished by the complainant and witnesses which is corroborated
by the medical evidence coupled with circumstantial evidence. Learned counsel
for appellant has failed to point out any material irregularly or serious
infirmity committed by the learned trial Court while passing the impugned
judgment which in my humble view is based upon proper appreciation of evidence
and same does not call for any interference of this Court. Thus, the
conviction awarded to the present appellant by learned trial Court is hereby
maintained and the instant Crl. Appeal filed by the appellant merits no
consideration, which is dismissed accordingly.The
case law relied upon by the learned counsel for the appellants is not
applicable in the case in hand as the facts and circumstances of the present
case are quite different from the cited case.
JUDGE
Nasim/P.A