' FAZAL-UR-REHMAN, J.--- This A.T.A. Murder Reference No,4 of 2003 has been sent by the learned Judge, Anti-Terrorism Court, Mekran at Turbat whereby, he convicted the accused person namely Moula Bux alias Moulak son of Sakhidad in absentia and sentenced him in the following manner:--
(a) Accused Moula Bux alias Moulak son of Sakhidad is convicted under section 302(b) of the P.P.C.
Read with section 7(a) of Anti-Terrorism Act, 1997 and sentenced to death as Tazir subject to confirmation by the Honourable High Court of Balochistan, Quetta. He shall be hanged by the neck till he is dead. He is also required to pay compensation of Rs,100,000 to the legal heirs of each deceased as required under section 544-A of the Cr.P.C. In default whereof he shall further suffer S.I. For six months.
(b) He is further convicted under section 353, P.P.C. And awarded R.I. For two years and fine of Rs,10, 000 in default of payment of fine he shall further suffer S.I. For six months.
(c) He is also convicted under section 21-L of Anti-Terrorism Act, 1997 and sentenced to suffer R.I.
For five years.
2. The occurrence is stated to have taken place on 1-11-2002 at about 7-30 a.m. Near Ser Dasht, Pasni. Report of this incident was made by P.W. Musafar, Piada Levies vide Exh.P./2-A. It is stated that on 31-10-2002 at about 12-00 at night, a wireless message was received by the Headquarter Tehsil, Pasni from Levies Headquarter Tehsil, Gwadar to the extent that two accused persons namely Moula Bux alias Moulak and Charshambay both sons of Sakhidad after committing murder of one Wahid Bux son of Mehmood and snatching his trailer motorcycle at Ankara Dam Gwadar escaped and at about 11-25 p.m., they were seen in the area of Kallag and Naib Tehsildar was chasing them. It is stated that on such information, A.D.A.O., Pasni directed the Naib Rasaldar Levies Tehsil, Pasni Badal Khan to arrange levies mobile for patrolling the area for the purpose of tracing the accused persons. It is stated that the complainant along with Naib Rasaldar Badal, Ejaz, Noor Bux and Rasool Bux, Piada at about 12-30 a.m., in official vehicle went toward the area Kallag/Ser Dasht. It is stated that on the next morning i,e, 1-11-2002 at about 7-30 a.m., the patrolling party saw the accused persons in the Dasht area on a motorcycle which was being driven by the accused Moula Bux alias Moulak and Charshambay was sitting on rear seat. It is stated that when the levies party reached near them Naib Rasaldar Badal Khan asked them to stop. It is stated that the accused fell down from motorcycle and when levies vehicle reached near to them, Charshambay started firing with .Is kalashnikov/rifle which hit on the head of levies official Noor Bux, Piada and he fell down while remaining bullets hit the official vehicle on right side. It is stated that other levies official Ejaz and Rasool Bux, Piada jumped toward the right side of the vehicle. It is stated that when levies official Noor Bux fell down and died at the spot, Naib Rasaldar Badal fired upon assailant Charshambay who died at the spot. It is stated that soon thereafter, accused Moula Bux alias Moulak took the rifle/kalashnikov of Charshambay and opened burst upon Naib Rasaldar Badal which indiscriminate firing resulted in to his death at the spot. It is stated that accused Moula Bux however, made his escape good in the near mountain. It was alleged that accused person while deterring the levies officials from discharge of their duties have also committed Qatl-i-Amd of two levies officials by way of firing upon them. Accordingly, a case being F.I.R. No,8 dated 1-11-2002 Levies Thana, Pasni under section 302 Qisas and Diyat Ordinance and 353, P.P.C. Was registered.
After registration of the case, P.W.5 Tehseen Ahmed, Tehsildar took the investigation in hand. He went to the place of occurrence where he took into possession, the dead bodies of Naib Rasaldar Badal Khan, Noor Bux, Piada and Charshambay (assailant) through memo. Exh.P./3-A and sent to hospital. Blood-stained uniform of deceased Badal and Noor Bux, blood-stained earth and levies pick-up are stated to have been taken into possession vide recovery memo. Exh.P/3-B. It is stated that during search of dead body of deceased Charshambay, .22 bore pistol along with three live cartridges and other articles were recovered and taken into possession vide recovery memo.
Exh.P/3-C. One magazine, 29 empties of kalashnikov, one telescope and one motorcycle were also taken into possession from the place of occurrence through memo. Exh.P/4-A. Site plan was prepared vide Exh.P./5-A and sketch of damaged official vehicle vide Exh.P/5-B. It is stated that .22 bore pistol and other articles are stated to have been recovered from deceased Charshambay related to case F.I.R. No,19 of 2002 under section 302, 34, P.P.C. Registered by Levies Station Gwadar were handed over to Naib Tehsildar, Gwadar by obtaining receipt Exh.P.5/C. It is stated that the dead bodies were handedver to their relatives by obtaining receipts Exh.P/5-E to Exh.P/5E-II. During investigation, he recorded the statements of prosecution witnesses under section 161, Cr.P.C. The blood-stained earth and uniform were sent for analysis and a report Exh.P/5-F was obtained.
Accused Moula Bux alias Moulak was absconding and on completion of investigation, the Investigating Officer submitted incomplete challan Exh.P/5-G wherein, the name of Moula Bux was indicated in column No,2 of the challan in red ink as absconder.
3. The charge under sections 302, 353, P.P.C. And section 7(a) of Anti-Terrorism Act, 1997 was framed against the accused person in absentia by the learned trial Court on 4-4-2003 and it was presumed that he pleaded not guilty.
4. In support of its case, the prosecution examined as many as five witnesses, brief description whereof, is as under:-- ' P.W.1 Dr. Muhammad Ibrahim, Medical Officer, Rural Health Centre, Pasni. On 1-11-2002, he examined the dead bodies of deceased Noor Bux and Badal. The said Medical Officer also examined the dead body of deceased Charshambay. On examination of the dead body of Noor Bux, he found an entrance of bullet wound 1/2"'in size on the back of head and an exit of bullet wound about 3" in length and 2" in width, on forehead (frontal area) on right side. According to the doctor, the skull bone was badly fractured and brain tissues came out from the wound site. The cause of death has been mentioned due to damage of vital organ. The natures of injuries have been shown to be grievous and the condition has been indicated to be fresh. The weapon used has been indicated as gun-shot. He has produced certificate Exh.P/1-A. According to doctor, the injuries mentioned in Exh.P/1-A were sufficient in the ordinary course of nature likely to cause death. P.W.1 Dr. Muhammad Ibrahim also examined the dead body of Badal son of Wali Muhammad on the same date at about 11-00 a.m. And observed as under:--
(1) An entrance of bullet wound on the forehead 2" above the left eyebrow. Size about 1/2".
(2) An entrance of bullet wound on the lateral side of chin, on left mandible, size about 1/2".
(3) An exit of bullet wound on the middle of the back of head, size about 2" in length and 1-1/2" in width. Skull bone was fractured and a brain tissue was come out from the wound site.
(4) An entrance of bullet wound on the left shoulder anteriorly, size about 1/2".
(5) An entrance of bullet wound on the right side of chest, about 1 c.m., on size at the level of 3rd rib.
(6) A exit of bullet wound about 3" in length and 2" in width, on the right lateral side of chest at the level of 4th rib.
(7) An exit of bullet wound on the right shoulder joint posteriorly, size about 1" in length and 1/2" in width.
(8) An exit of bullet wound on the back of chest near the right scapula, with 2" in length and 1" in width.
(9) An entrance of bullet wound on the right arm on lateral side, about 1/2" in size.
(10) An exit of bullet wound on the right arm meadily size about 4" in length and 3" in width. Right Humerous bone was fractured and a muscle of the arm was badly damaged.
' Cause of death: Vital organ damage and profuse bleeding.
' Condition: Fresh.
' Nature of Injuries: Grievous.
' Weapon used: Gun-shot.
' According to the doctor, the injuries were sufficient in the ordinary course of nature likely to cause death. He has also produced M.L.C. Exh.P/1-B. Similarly, the dead body of Charshambay son of Sakhi Dad was also examined by the same doctor at about 11-00 a.m. And observed as under:--
(1) An entrance of bullet wound on the right cheek about 1 c.m. In size.
(2) An exit of bullet wound on the forehead on left side. Length about 3" and width about 2" in size.
Skull bone was fractured and a brain tissue was come out from the wound site.
(3) An entrance of bullet wound on the right lumber region, about 1/2" in size.
4. An exit of bullet wound on the left lumber region anteriorly, length about 2-1/2" and width about 1-1/2". The gut was comes out from the abdominal cavity at the wound site.
(5) An entrance of bullet wound on the right hip bone on lateral side, about 1/2" in size.
(6) An exit of bullet wound on the left rip bone laterally, about 1-1/2" in length and 1" in width.
(7) A lacerated wound on the right heel.
' Cause of death: Vital organ damaged.
' Nature of injuries: Grievous.
' Condition: Fresh.
' Weapon used: Gunshot.
' He has produced certificate Exh.P/1-C. In cross-examination, the Medical Officer denied the suggestions that deceased were died natural death and the injuries found on the person of dead bodies were not sufficient.
' P.W.2 Musafar, Piada Levies is an eye-witness and complainant of the case. According to him on 31-10-2002 at about 12-00 night Levies officials, Pasni received information from Gwadar levies through wireless that accused Moula Bux alias Moulak and Charshambay both sons of Sakhidad after committing murder and snatching trailer motorcycle from one Wahid Bux son of Mehmood near Ankara Dam and at about 11-25, they passed from Kallag and Naib Rasaldar, Gwadar was after them. On receipt of such information, the patrolling party consisting of Badal, Naib Tehsildar, Ejaz, Noor Bux, Rasool Bux, Piada Levies and the complainant proceeded towards Ser Dasht in a Pick-up. He has stated that on 1-11-2002 at about 7-30 a.m., they saw the accused persons on a trailer motorcycle which was being driven by Moula Bux while Charshambay was on rear seat. It is stated that Naib Resaldar Badal Khan asked them to stop the motorcycle. It is stated that both of them fell down from motorcycle and when the vehicle of levies reached near to them accused Charshambay made firing with his kalashnikov which hit Noor Bux, Piada Levies on his head and fell down. It is stated that the official vehicle was also damaged. It is stated that Naib Resaldar Badal Khan in exchange made fire which hit Charshambay who died at the spot. He has further deposed that the other accused Moula Bux alias Moulak at once took the rifle/K.K. Of Charshambay and opened burst upon Naib Resaldar Badal who died at the spot. According to this witness, they have also made encounter firing but accused Moula Bux alias Moulak made indiscriminate firing by means of kalashnikov which also hit their vehicle at right side and thereafter, accused Moula Bux escaped from the place of occurrence. According to him, the accused persons deterred the Levies officials from discharging of their duty and deceased Noor Bux, Piada and Badal, Naib Resaldar while performing their duty after receiving fire-arm injuries caused to them by making fire with kalashnikov by Charshambay (deceased) and Moula Bux and the said Levies officials died.
According to him, on his report F.I.R. Was registered which he has produced as Exh.P/2-A and identified his signature on the same. He has also identified vehicle Article 1, Trailer Motorcycle Article 2. In cross-examination, the said witness has denied the suggestions that at the time of incident, he was not present at the spot, absconding accused Moula Bux has wrongly been involved in the case and not identified at the spot. The learned trial Court has believed the evidence by observing that the statement of above prosecution witness is inspiring-confidence and fits in the circumstances of the prosecution case. It is also stated that the medical evidence also provided corroboration to ocular evidence of the witness. It has further been observed that the version of this witness has also been supported by other eye-witness and circumstantial evidence.
' P.W.3 Ejaz, Piada. He was also a Member of the Levies party and supported the statement of P.W.2.
He also stood as marginal witness to recovery memos. Exh.P/3-A, Exh.P/3-B, Exh.P/3-C and identified the articles which were shown to him. In cross-examination, P.W.3 has denied the suggestions that Naib Resaldar Badal and Noor Bux, Piada died on account of Levies firing, the accused has wrongly been implicated in the case and Articles 1 to 16 were prepared at Tehsil.
' P.W.4 Rasool Bux, Piada has deposed that on 1-11-2002 Tehsil, Pasni took into possession one magazine of kalashnikov, 29 empties of kalashnikov, one telescope and motorcycle vide recovery memo. Exh.P/4-A. He has identified his signature on the same. He has identified magazine Articles 18, 29 empties Article 19, Telescope Article 21 and Motorcycle as Article 1. In cross-examination, he has denied the suggestions put to him by the learned counsel for absconding accused that above articles were not taken into possession in his presence, recovery memo. Was prepared at Tehsil and he did not sign Exh. P/4-A.
' P.W.5 Tehseen Ahmed, Tehsildar. He is the Investigating Officer who at the relevant time was posted as Tehsildar, Pasni. He has testified about various steps taken by him during the investigation. He has also produced site plan Exh.P/5-A, sketch of vehicle Exh.P/5-B, receipt Exh.P/5- C, copy of F.I.R. Pertaining to case of Tehsil Gwadar Exh.P5/-D, receipts regarding handing over of the dead bodies Exh.P/5-E to Exh.P/5-E2, report of Chemical Expert Exh.P/5-F and challan Exh.P/5-G.
The Investigating Officer while replying a question put to him by the learned counsel for absconding accused has denied the suggestion that due to Levies firing Naib Resaldar Badal and Noor Bux died. He has also denied the suggestions regarding conducting improper investigation and preparation of recovery memos. At Tehsil.
5. The learned trial Court formulated the following points for determination and consideration;--
(1) Whether deceased Badal son of Wali Muhammad and Noor Bux son of Allah Bux were died unnatural death by sustaining firearm injuries?
(2) Whether accused Moula Bux alias Moulak son of Sakhidad is responsible for committing Qatl-e- Amd of deceased Badal and Noor Bux by way of firing in furtherance of common intention and deter the levies officials from discharge of their lawful duty?
(3) What offence, if any, is made out?
6. After assessm ent of evidence, the learned trial Court believed the evidence of eye account furnished by P.Ws.2 and 3. According to the learned trial Judge both the aforesaid witnesses are supported by medical as well as circumstantial evidence and the same were found to be worthy of reliance and confidence inspiring. Similarly, the absconsion of the accused was also considered to be a corroborative factor. The learned trial Judge came to the conclusion that the prosecution has proved its case beyond any shadow of doubt against the accused which established that accused Moula Bux alias Moulak on 1-11-2002 at about 7-30 a.m. Near Ser Dasht caused death of deceased Badal and he was also held responsible for committing the murder of deceased Noor Bux in furtherance of common intention and also to deter levies officials from discharge of their lawful duty. The learned trial Court found the absconding accused guilty of the offence of Qatl-i-Amd of deceased Badal and Noor Bux. The learned trial Court has also observed that the evidence on record establish that deceased Noor Bux died due to firing of deceased Charshambay for which, accused Moula Bux shared common intention therefore, he can be saddled with construction of vicarious liability under section 34 of the P.P.C. The learned trial Court accordingly convicted the absconding accused Moula Bux alias Moulak under the aforesaid sections and sentenced him in the manner hereinabove mentioned. The sentences were ordered to run/be executed after his arrest and non-bailable warrant of arrest was ordered to remain intact. The learned Judge, Anti- Terrorism Court has forwarded the reference for confirmation of the sentence of death awarded to absconding accused Moula Bux alias Moulak in absentia.
7. We have heard Mr. Ghulam Mustafa Mengal, Additional Advocate-General for State and Miss Saima Jabreel, Advocate learned counsel for pauper convict.
8. After hearing the learned counsel for the parties and having gone through the relevant record with their assistance, it can be stated that the impugned judgment is neither arbitrary nor perverse.
Nothing has been brought on record, which can indicate that there existed any enmity between the absconding convict and prosecution witnesses and he has falsely been implicated in the commission of offence on account of mala fide. The trial Court has discussed the evidence and the learned counsel for pauper absconding convict has not been able to point out any illegality or irregularity as to how the impugned judgment is not sustainable. The eye account of the occurrence has been furnished by P.Ws.2 and 3. In cross-examination of these witnesses, nothing has been elicited to detract the value of the testimony. The ocular evidence furnished by P.W,s.2 and 3 supported by the medical as well as circumstantial evidence have been found worthy of reliance and confidence inspiring by the learned trial Court. Similarly absconsion of accused has been considered as corroborative evidence.
9. The learned trial Court while dealing with the evidence of prosecution witnesses and circumstantial evidence has made observations in the judgment, the relevant portion of which is reproduced below for the sake of facility:-- "24. The above circumstantial evidence support the version furnished by ocular evidence i,e, P.W.2 and P.W.3. According to them at the spot accused persons made indiscriminate firing upon levies officials during which two levies officials namely Badal and Noor Bux died due to sustaining fire- arm injuries. The official blood-stained uniforms of above deceased were taken into possession through memo. Exh.P/3-B. The bloodstained earth was also taken through the above memo. And regarding that P.W.3 has deposed during his statement. The positive report produced by P.W.5 Exh.P/5-F of Forensic Science Laboratory further support the prosecution case as circumstantial evidence.
25. The testimony of above prosecution witnesses and circumstantial evidence substantiate that the accused Moula Bux and the then accused Charshambay (now died) were nominated in a case F.I.R. Dated 31-10-2002 registered by levies Thana Tehsil Gwadar at about 8-30 p.m. Which has been produced as Exh.P/5-D, according to that F.I.R. Both the above accused while committing murder of one Wahid Bux son of Mehmood also snatched his trailer motorcycle and escaped from the spot. The levies officials of Gwadar were chasing after accused and when they came to know that accused went in the area of levies Pasni they through wireless informed the concerned levies on the basis whereof A.D.A.O. Of levies directed to arrange Gasht party of levies Pasni and after that Gasht party went after accused persons where the incident as substantiated by the above prosecution witness took place and the circumstances of the prosecution case further shows that the levies officials were officiating their lawful duty to arrest the two accused i,e, Moula Bux alias Moulak and Charshambay both sons of Sakhidad and during discharge of their lawful duty the accused persons committed murder of two levies officials namely Naib Rasaldar Badal and Noor Bux Paida. The evidence as produced by the prosecution further shows that accused Charshamby (now died) committed murder of deceased Noor Bux and absconding accused Moula Bux alias Moulak committed murder of deceased Badal by way of firing with kalashnikov. The accused Moula Bux was companion of accused Charshamby and had common intention with his co- accused when they were making firing upon levies official their act of indiscriminate firing further shows their intention. The accused Moula Bux alias Moulak is absconding since the registration of F.I.R. And the absconsion of accused is also corroborative factors which involve him in the commission of offence.
10. We have no reason to suspect their words about the manner of incident took place, presence of absconding convict and deceased Charshambay at the place of occurrence and sustaining of fire-arm injuries by deceased Badal Khan and Noor Bux. They are natural and also independent witnesses. Interested witness is one who has an animus for false charge against accused. Eye- witnesses were not inimical towards accused person therefore, their evidence is not unworthy of belief. We, found that none of the eye-witnesses could be termed as interested witnesses only for the reason that they are levies personnel as none had any previous or grudge against the absconding convict as nothing has come on record to this extent. Merely because the witnesses are levies personnel would not make them interested as they had no reason to substitute the absconding convict for the real killer.
11. There is evidence that the deceased Charshambay who was armed with kalashnikov made firing and as a result of such firing Noor Bux sustained fire-arm injuries and died at the spot. There is also evidence that the said kalashnikov was then taken by absconding convict and made indiscriminate firing which resulted into death of Badal Khan.
12. Common intention has to be gathered from the facts disclosed in evidence and surrounding circumstances, common intention can be formed at the spur of the moment. It may, therefore, be stated that once it is found that the accused had common intention to the crime, it is C immaterial as to which part was played by whom. Section 34, P.P.C. Clearly lays down that when a crime is committed in furtherance of common intention of several persons, each one of such person would be liable for the offence, as if, he alone had perpetrated it. The very purpose of this provision of law is to create joint liability for those, who indulge in the organized commission of crime. In the nature of things, it cannot be said of certain the exact part of each one, if several accused persons acting with common intention and object. In the instant case, the absconding convict has rightly been found to have had shared common' intention.
13. As far unnatural death of deceased Noor Bux and Badal Khan is concerned besides, ocular evidence, there is evidence of P.W.1 Dr. Muhammad Ibrahim regarding external examination of deceased Noor Bux and Badal Khan. From the examination of dead bodies of the deceased, the doctor is of the opinion that the death of Noor Bux and Badal Khan have occurred on account of damage to vital organ. From the nature of injuries sustained by deceased persons and medical evidence, it can be concluded that whoever caused the injuries had intention to cause such injuries, as were sufficient in the ordinary course of nature, likely to cause death or with knowledge that the act was so imminently dangerous that it must be in all probability to cause death.
14. As stated earlier that mere fact that eye-witnesses were levies personnel would not be sufficient to reject their evidence. Medical evidence also provided corroboration to ocular evidence. In criminal cases, the evidence of police/levies officials who are natural witnesses cannot be discarded without considering the same on merits. Police/Levies officials who have no against accused person would be competent witnesses and their evidence cannot be discarded for the reason that they are police/levies employees. Intention of the accused in criminal cases is to be gathered or inferred from the external act attributed to him. Chemical Expert's report (Exh.P/5-F) is on record, it indicates that articles were stained with human blood. The learned trial Court has rightly believed the prosecution evidence.
15. For the aforesaid reasons, we are of the view that the guilt of the absconding convict has been proved on record by the prosecution by ocular account, medical evidence, circumstantial evidence and absconsion which has rightly been believed by the learned trial Court. The learned counsel for the pauper absconding convicted was not able to refer any mitigating reason/circumstances which could .Be considered for awarding the lesser penalty of life imprisonment. This was a brutal murder without any justification and the absconding convict acted as a desperate and hardened criminal, so the imposition of normal penalty of death was fully justified. This Court can infer on the basis of evidence and circumstances of the case, that the version given by the prosecution is more probable and near to the truth in respect of absconding convict. The absconding convict has rightly been convicted by the learned trial Court.
' Murder Reference is answered in affirmative.
Death .