There are various factors which affect blackening e.g. surface of target i.e. wet or dry and the body structure of the victim and the quality of gun powder. Probably, the accused would have extended his arm to shot fire at the deceased. The normal length of the arm of an average man is more than two feet. With this if we add the length of the weapon i.e. .30 bore pistol, the distance between the accused and the deceased remains less than three feet. The deceased was not a static object and he could have changed his position at the time of occurrence. Even otherwise it is settled law that where ocular evidence is found trustworthy and confidence inspiring, the same is given preference over medical evidence.
Casual discrepancies and conflicts appearing in medical evidence and the ocular version are quite possible for variety of reasons. During occurrence when live shots are being fired, witnesses in a momentary glance make only tentative assessment of the distance between the deceased and the assailant and the points where such fire shots appeared to have landed and it becomes highly improbable to mention the distance correctly and the location of the fire shots with exactitude.
As far as the question that the witnesses of the ocular account are related to the deceased, therefore, their testimonies cannot be believed to sustain conviction of the petitioner/convict is concerned, it is by now a well established principle of law that mere relationship of the prosecution witnesses with the deceased cannot be a ground to discard the testimony of such witnesses.
Substitution in such like cases is a rare phenomenon. The complainant would not prefer to spare the real culprit who murdered his brother and falsely involve the petitioner without any rhyme and reason.
It is a well settled proposition of law that as long as the material aspects of the evidence have a ring of truth, courts should ignore minor discrepancies in the evidence. The test is whether the evidence of a witness inspires confidence. If an omission or discrepancy goes to the root of the matter, the defence can take advantage of the same. While appreciating the evidence of a witness, the approach must be whether the evidence read as a whole appears to have a ring of truth. Minor discrepancies on trivial matters not affecting the material considerations of the prosecution case ought not to prompt the courts to reject evidence in its entirety. Such minor discrepancies which do not shake the salient features of the prosecution case should be ignored.
Under the law, ASI was not authorized to investigate the murder case falling within the ambit of Section 302 PPC.
Even if motive and recovery is discarded, there is sufficient evidence available to sustain the conviction of the petitioner/convict. So far as the quantum of punishment is concerned, keeping in view the fact that recovery is inconsequential and motive has not been proved, the learned High Court has rightly taken a lenient view and converted the sentence of death into imprisonment for life. No further leniency can be shown to the petitioner.
There was a confessional statement on the part of all the co-accused is of no avail as the same was made jointly, which has no legal sanctity. Even otherwise, the same is inadmissible in evidence.
Life Imprisonment/Sessions
J.P.557/2016
Muhammad Bashir v. The State
Mr. Justice Sayyed Mazahar Ali Akbar Naqvi
31-10-2022
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