1. Mehta Kailash Nath Kohli, J.--This appeal is directed against judgment dated 15th March, 2005, passed by learned Additional Sessions Judge-I, Quetta, whereby; appellant Umeed Khan son of Khuda Bakhsh, caste Shahwani, has been convicted under Section 302(b)/34 PPC and has been sentenced to suffer RI for imprisonment of life. Benefit of Section 382-B, Cr.P.C. was, however, extended in favour of appellant.
2. Facts of the case, in brief, are that on fard-e-biyan of complainant Nabi Bakhsh son of Sarang Khan caste Pirkani, a report was lodged at Police Station Shalkot, Quetta. In fard-e-biyan, complainant alleged that he alongwith his family, was residing with his brother Muhammad Amin in Killi Chilton, Sariab road Quetta. Few days back, brother-in-law of complainant namely Muhammad Ali Shahwani had quarreled with his brother Muhammad Amin sons of Khuda Bakhsh on family dispute, upon which, complainant, and other relatives had settled the dispute between two brothers. It was further alleged that on the day of incident i,e, 28th August, 2003, complainant alongwith his brother Muhammad Amin were present in house of their brother-in-law, in the meanwhile, Nabi Dad, Muhammad Alam sons of Muhammad Amin Shahwani had quarreled with their paternal uncle Muhammad Ali; complainant and his brother intervened and patched up the matter. On the same day, at about 5:30 p.m. complainant, his brother Muhammad Amin alongwith their brother-in-law Muhammad Ali and nephew Muhammad Din son of Muhammad Ali had gone to mosque for offering `Asar' prayers; on return, on their way, Muhammad Alam and Nabi Dad sons of Muhammad Amin Shahwani, residents of Killi Kamaloo, Hazoor Bakhsh son of Khuda Bakhsh Shahwani, resident of Killi Chiltan, Umeed Khan son of Khuda Bakhsh resident of Killi Panday, Mastung present at Quetta, were standing, who on seeing them, started beating them with kicks and fists, in the meanwhile, Muhammad Alam made firing with pistol, upon which, a bullet hit Muhammad Amin brother of complainant, which entered in his chest, exited from back and further hit on right leg of one passer by child namely Hakim Zadi daughter of Muhammad Afzal Shahwani, consequently, both of them sustained injuries and fell down; the above said persons immediately after the incident ran away from the scene. It was further averred that complainant alongwith Muhammad Din and Muhammad Ali brought his injured brother Muhammad Amin and child Hakim Zadi to civil hospital, for medical treatment. Complainant further stated that all the above stated four persons, in connivance of each other, had committed murder of his brother and had injured child namely Hakim Zadi. Consequent upon fard-e-biyan, FIR No, 90 of 2003, dated 28th August, 2003, under Section 302/324 PPC was registered with Police Station, Shalkot Quetta. After registration of case appellant Umeed Ali was arrested, while remaining co-accused persons were declared absconders.
3. After usual investigation, appellant was challaned in the Court of Additional Sessions Judge-I, Quetta. Charge was framed and read-over to appellant Umeed Ali, who did not plead guilty and claimed trial.
4. To substantiate accusation against appellant, prosecution produced following evidence:-- PW-1 Nabi Bakhsh son of Sarang (complainant). He deposed that incident took place on 28th August, 2003 when Muhammad Amin and Muhammad Au had a dispute, who are brothers.
5. Witness further deposed that at 5:30 p.m. there was fight at Killi chiltan, Saraib road; witness after offering `Asar' prayers came out of the mosque and saw that Muhammad Alam, Hazoor Bakhsh, Nabi Dad and accused Umeed Khan were fighting with his brother, Muhammad Alam made fire with pistol on his brother Muhammad Amin, which hit on his chest and he fell down, upon which, witness and his nephew Muhammad Din took Muhammad Amin to hospital through Datsun; in the meantime, at the place of incident, a girl was also injured due to firing; after firing, accused persons ran away from the place of incident; in hospital, injured Muhammad Amin succumbed to injuries.
6. Witness deposed that he gave statement to police in Police Station. He produced fard-e-biyan (Ex.
7. P/1-A) and identified his thumb impression on the same. Witness also identified accused present in the Court.
8. In cross-examination, witness admitted that accused persons namely Hazoor Bakhsh and Umeed Khan are real brothers. He admitted that all accused persons i.e Umeed Khan, Hazoor Bakhsh, Muhammad Alam and Nabi Dad belong to one family and are relatives to each other. He admitted that witnesses Muhammad Din and Muhammad Ali are son and father and they are residing in one house. Witness admitted that witness Muhammad Ali is his brother-in-law and witness Muhammad Din is his nephew. He admitted that absconding accused Muhammad Alam is son of accused Umeed Khan's brother. Witness admitted that accused present in Court is an old person.
9. Witness admitted that his house is situated in Killi Chiltan, while house of witnesses Muhammad Ali and Muhammad Din, is situated in Killi Kamaloo. He admitted that there is distance of 2 or 3 kilometers between the place of incident and house of witnesses Muhammad Ali and Muhammad Din. Witness showed his ignorance about existence of mosque in Killi Kamaloo or other wise. He did not know that at what time, he put his thumb impression on fard-e-biyan (Ex. P/1-A). Witness showed his ignorance about the date and 'time, when police recorded statements of witnesses Muhammad Ali and Muhammad Din. He admitted that Ali Ahmed and Nabi Dad are sons-in-law of witness Muhammad Ali. Witness did not know whether in 1996, accused present in Court got registered a case against Ali Ahmed and Nabi Dad. Witness admitted that he and accused present in Court, are enraged for four years. Witness admitted that accused is his relative. He admitted that accused present in Court and Muhammad All have garages at Gahi Khan Chowk, Sariab road.
10. Witness admitted that there exists single wall, in between both garages; he also admitted that shops are located in front of garages. Witness admitted that house of accused present in Court is situated in Killi Panday, Mastung and has Government job at Mastung. Witness showed his ignorance that witness Muhammad Ali had sued accused present in Court, in respect of his garage, situated at Gahi Khan Chowk. He admitted that witness Muhammad Ali and accused present in Court are real brothers. Witness denied that he and Muhammad Ali had gone to the shops and garage of accused present in Court and demanded possession of shops and garage and on refusal of accused, false case has been made against him. It was stated that after half an hour of firing, injured was taken to hospital and police authorities came to hospital; witness remained in hospital for twenty minutes or half an hour. He denied that after negotiations, false case was registered against accused present in Court. Witness denied that he was not present at the place of incident. He denied that he has made false statement.
11. PW-2 Muhammad Ali son of Khuda Bakhsh appeared in witness-box and deposed that few days prior to incident, his brother Muhammad Amin alongwith his two sons namely Muhammad Alam and Nabi Dad came to his house and had quarreled with him, at that time, he was living in Killi Kamaloo, people of Killi gathered and patched up the matter, which was honoured by witness's side. It was further deposed that on the day of incident i,e, 28th August, 2003, four accused persons amongst whom one was Muhammad Alam, who made fire shot upon Muhammad Amin with pistol, bullet hit on his chest due to which, he died at the spot; the other accused persons were Umeed Ali (present in Court, who is brother of witness), Nabi Dad, Alam and Hazoor Bakhsh, had beaten deceased Muhammad Amin with Kicks and fists; one bullet also sustained injury to a girl.
12. Witness deposed that except accused Muhammad Alam, he had not seen any fire-arm in the hands of remaining accused persons. He stated that in the afternoon at Killi Chiltan, accused persons killed his brother. Witness further deposed that after commission of murder of deceased, accused persons ran away and they brought injured Muhammad Amin to Civil Hospital in a pick- up, and; injured Muhammad Amin succumbed to injuries. Deceased was his brother-in-law.
13. Witness identified accused present in Court to be the same.
14. In cross-examination, witness admitted that witness Muhammad Din is his son.. He admitted that sister of complainant Nabi Bakhsh, is his wife. He admitted that he and witness Muhammad Din, reside in one house. He denied that there is distance of two/three kilometers, in between his house and place of incident; voluntarily stated that the distance from their house is about two miles. He admitted that there are many mosques in Killi Kamaloo. Witness admitted that Ali Ahmed and Nabi Dad are his brothers-in-law. He denied that in 1996, accused present in Court had initiated Criminal proceedings against Ali Akbar and Nabi Dad in Levies Station Mastung. Witness denied that in this respect, he was angry because accused present in Court had lodged criminal case against his brothers-in-law; voluntarily stated that he has no knowledge of the same. He denied relationship between him and accused present in Court, are not good. He admitted that for seven/eight years, accused had not visited them. He denied that his son Muhammad Din and accused present in Court have no good relations. It was stated that after half an hour of incident, injured was taken to hospital; voluntarily stated that arrangement of vehicle was made for taking injured to hospital. He denied that place of incident is a public way, where remains traffic; voluntarily stated that traffic and public used to come and go, but there remains no rush at the place of incident. He admitted that place of incident is situated in a populated area. It was stated that police had not come to place of incident; voluntarily stated that police had reached hospital after their arrival; witness further stated that police authorities reached after half an hour. Witness stated that it took forty- five minutes in reaching hospital from the place of incident; they remained in hospital for about one hour. Witness stated that he had given statement to police in hospital; he could not tell as to whether police had recorded his statement first, or registered report of Nabi Bakhsh. Witness stated that he had put his thumb impression on his statement. Witness admitted that at Gahi Khan Chowk Sariab Road, garages measuring 10,000 feet each, are ,belonging to him and accused present in Court. He admitted that there exists single wall in between his and garage of accused present in Court. He admitted that in front of garage of accused present in Court, his shops are located, which have been given on rent and he collects rent in thousands of rupees. He admitted that said garage and shops have no mutation record. Witness admitted that accused present in Court resides in Mastung and also he is employee in P.T.C.L. at Mastung. He denied that prior to the incident, he had stated that garage of accused present in Court, belongs to him. Witness denied that he alongwith Nabi Bakhsh (complainant) and his son Muhammad Din had forcibly attempted to occupy garage of accused. He denied that after arrest of accused, he had made hole in the joint wall, Witness denied that prior to incident, his son Muhammad Din and Nabi Bakhsh, complainant of case had threatened accused to give possession of garage to them. Witness denied that prior to incident, when accused refused to give possession of garage, they had threatened him that they will kill him or involve him in false case and get him strangulated. He denied that when his brother Hazoor Bakhsh did not accompany him, witness threatened him. He denied that neither accused present in Court was present at the place of occurrence nor he had committed murder of deceased.
15. Witness denied that he was not present at the place of occurrence. He denied that he deposed against accused, for the reason to occupy his property. Witness denied that he had told Abdul Salam Bangulzai and Takari Muhammad Hussain Shahwani that accused present in Court is innocent, but they will give statement against him.
16. PW-3 Mansab Khan ASI. He deposed that on 28th August, 2003, he alongwith constable Muhammad Saleem, SI Muhammad Rafique and SHO Ghaus Bakhsh, in connection with investigation of the case, proceeded from Civil Hospital and at 8:00 p.m. reached the place of occurrence i,e, Killi Chilton, Kamaloo Road. It was further deposed that in presence of witness and Muhammad Saleem constable, SI Muhammad Rafique inspected the site and prepared site inspection memo (Ex. P/3-A) bearing his and signatures of Muhammad Saleem constable and identified the same in Court. Blood stained earth was secured vide recovery memo (Ex. P/3-B) bearing signatures of witness and Muhammad Saleem constable; blood stained earth was taken into possession vide parcel (Article-P/1), which bears his signature. (On the request of DA, parcel was opened, upon which stamp of LS was present). Witness produced sample of seal (Article-P/2) and blood stained earth (Article-P/3). Witness further deposed that one empty of TT pistol was recovered from the place of occurrence, vide recovery memo (Ex. P/3-C) bearing signatures of witness and Muhammad Saleem constable; staled parcel of empty was prepared vide Article-P/4.
17. (At the request of DA, parcel was opened). Witness produced sample of seal Article-P/5) and empty of cartridge (Article-P/6) and returned to Police Station. It was further deposed that on the same night at 9:00 p.m. complainant of the case produced clothes of deceased Muhammad Amin in Police Station, which were take into possession vide recovery memo; witness and Muhammad Saleem constable signed the same; he produced recovery memo (Ex. P/3-D) and identified the same. It was further deposed that parcel of clothes was prepared as Article P/7. (On the request of DA, parcel was opened); witness produced sample of seal (Article-P/8), clothes i,e, brown coloured Shalwarkameez and while coloured banyan stained with blood as Article-P/9, identified his signatures on same.
18. In cross-examination, he stated that they reached hospital at about 7:30 p.m. and remained there for half an hour. It was stated that distance between hospital and place of incident, is about 15 to 20 minutes. Witness stated that memos were prepared in the torch-light. It was further stated that SI Rafique had written the memos. Witness admitted that place of occurrence is situated in a populated place. He admitted that in his presence, no private witness was called. Witness stated that they remained at the place of occurrence for about 30/45 minutes. He denied that all the memos were prepared in Police Station. He denied that he was not present at the place of occurrence. He denied that he has made false statement.
19. PW-4 Muhammad Din son of Muhammad Ali. He deposed that he is residing in Killi Kamaloo; his father-in-law Muhammad Amin, Muhammad Alam and Nabi Dad attacked on his house; after the attack, inhabitants of Muhalla had settled the matter between them and Muhammad Amin. It was further deposed that on 28th August, 2003, it was time of `Asar' prayer; Hazoor Bakhsh, Muhammad Alam, Umeed Khan and Nabi Dad had beaten Muhammad Amin near Masjid-e-Aqsa and injured him, a person namely Muhammad Alam by making fire with pistol committed murder of Muhammad Amin; the bullet passed chest of Muhammad Amin and entered in leg of a girl namely Hakim Zadi, who sustained injury; witness, Nabi Bakhsh and Muhammad Ali brought Muhammad Amin and Hakim Zadi to hospital in injured condition; after one hour of reaching hospital, Muhammad Amin succumbed to injuries, and; immediately after providing medical treatment, Hakim Zadi was discharged from hospital. Witness further deposed that Hazoor Bakhsh, Muhammad Alam, Umeed Khan and Nabi Dad with common intention, had committed murder of Muhammad Amin. Witness identified accused present in Court Umeed Ali, while remaining accused persons were absconders.
20. In cross-examination, he deposed that witness Muhammad Ali is his father. He admitted that complainant of case is maternal uncle. He admitted that he resides with his father in one house..He admitted that the place of incident is situated at a distance of 3 (1/2) miles from their house. He admitted that in 1996, accused Umeed Khan had lodged a case with Levies Mastung against his relatives Ali Ahmed and Nabi Dad. He admitted that accused persons are relatives to each other.
21. He admitted that there is a distance between their house and house of complainant. He admitted that there are several mosques in Killi Kamaloo. He denied that for seven/eight years, they have no visiting terms with accused. Witness did not know exact time, however, stated that they reached hospital after one hour of the incident. It was stated that when they reached hospital, at what time many police persons were present there. It was stated that after the incident, from hospital, he directly went to Police Station at 8:30 p.m. and remained there for half an hour. He admitted that his father and accused have separate garages measuring ten thousand square feet, each, and there is single wall in between both the garages. He admitted that accused is employed in T&T department. He admitted that in front of garage of accused, accused had constructed shops, from which he receives rent. Witness denied that he, his father and Muhammad Ali had attempted to forcibly occupy the garage on the pretext that the same belongs to them. He admitted that there a hole is made in the intervening wall; voluntarily stated the same was made by their tenant `Mistari'.
22. He denied that they had threatened the accused for involving him in a false case. He admitted that accused is his real paternal uncle. He denied that for 7/8 years there exists enmity between them.
23. He denied that in his statement under Section 161, Cr.P.C., he had not disclosed that Muhammad Amin, Alam and Nabi Dad had not attached on their house. (Confronted not so recorded). He denied that accused had not beaten the deceased. He denied that he was not present at the place of incident. He denied that they had not shifted injured to hospital. He denied that he has deposed falsely.
24. PW-5 Dr. Ghulam Sarwar Hashmi appeared and deposed that on 28th August, 2003, he was posted as MLO in Casualty Department, Civil Hospital, on the same day, at 7:00 p.m. a person namely Muhammad Amin was brought by his relatives, in injured condition. Witness examined the injured; one bullet injury was found on chest of deceased Muhammad Amin, which exited from back, he was in serious condition, he was provided all medical aid and after about five minutes, succumbed to injuries. Witness opined following injuries on the person of deceased Muhammad Amin:-- "Injuries:--
1. Entrance bullet wound 1 cm in epigastria.
2. Exit bullet wound 3 3z cm on back.
3. very serious, all emergency treatment given in casualty. Referred to Surgical Ward and expired in way to ward on same date and time.
25. Cause of death of deceased is injury on chest and damage the vital organ of chest, shock and death caused by fire-arm. Fresh."
26. Witness issued death certificate (Ex. P/5-A) regarding deceased Muhammad Amin and identified his signature on same. Witness further deposed that at the same time a young girl namely Hakim Zadi was brought to hospital at 7:00 p.m. by Haji Muhammad Hassan, who was having bullet injury on her right leg, x-ray was obtained in which bullet was found in her body; she was shifted to orthopedic ward, details of injuries sustained by young girl Hakim Zadi are as under:-- "Injury.
27. Bullet entrance wound 1 cm on lower end of Tibia Rt.
28. X-ray shows FB metallic density without fracture. Nature of injury fresh. Weapon used fire-arm."
29. Witness issued medical certificate (Ex. P/5-B) in respect of injured Hakim Zadi, which bears his signature. Court observations, "in this respect, a murasla be sent to Director General Health that the doctor, who had issued medical certificate, is telling the Court that injured (Hakim Zadi) has sustained bullet injury and medical certificate is simple, and; concerned doctor as well as doctors of BMCH and Civil Hospital are directed to issue proper medical certificate and action be taken against concerned doctor." In cross-examination, witness admitted that in Ex. P/5-A, there is nothing mentioned in respect of any relative. He denied that authorities of EDHI Center brought Muhammad Amin to hospital.
30. PW-6 Hakim Zadi daughter of Muhammad Afzal was produced, who deposed that she was playing outside, a bullet hit on her right leg, due to which she sustained injury as well as a person was also injured.
31. PW-7 Ghaus Bakhsh Sub Inspector appeared in witness-box and deposed that on 28th August, 2003 he was posted as SHO Police Station, Shalkot, SI Rafique was deputed for conducting investigation in case FIR No, 90 of 2003. Witness produced FIR (Ex. P/7-A) and identified his signature on the same. Thereafter, on 30th August, 2003 on the direction of higher officials, witness was deputed for investigation. It was further deposed that during investigation, on 3rd September, 2003, witness with the help of SHO Mastung accused present in Court, nominated in FIR was arrested and warrants of arrest of remaining accused persons, were obtained. On 17th September, 2003 vide order of higher official of department, Inspector Muhammad Alam Pirkani was deputed as SHO, and; after completion of investigation, accused was remanded to judicial lock-up. Witness produced incomplete challan (Ex. P/7-B) and identified signature of SHO on the same. It was further deposed that on 30th September, 2003, FSL report (Ex.P/7-C) was obtained, witness produced incomplete challan (Ex. P/7-D) and identified signature of SHO on same. Witness also identified accused present in Court to be the same from whom investigation was conducted; In cross-examination, witness admitted that accused in resident of Mastung. Witness showed his ignorance that accused is employed in T&T Department; voluntarily stated that accused verbally told that he is employee of T&T Department. Witness denied that accused was arrested when he was performing his duty in T&T office Mastung. He denied that he had not conducted proper investigation.
32. PW-8 Muhammad Rafique Sub Inspector deposed that on 28th August, 2003, he was posted as Sub Inspector in Police Station, Shalkot; through control received information that there was a fight, upon such information, witness alongwith Ghaus Bakhsh SI/SHO and other police official of Police Station, proceeded to civil hospital, where dead-body of deceased Muhammad Amin was lying and one young girl Hakim Zacti was also present in injured condition. Witness further deposed that Ghaus Bakhsh SI, recorded fard-e-biyan of deceased's brother Nabi Bakhsh and sent the same to Police Station, for registration of case, and; witness was deputed for investigation. Inquest report (Ex. P/8-A) under Section-174 Cr.P.C. was prepared and statements of injured Hakim Zadi as well as of witnesses Muhammad Din and Muhammad Ali, were recorded; thereafter, on the pointation of complainant they proceeded to the place of incident situated at Killi Chiltan, where witness prepared site inspection map; he produced the same as Ex. P/8-B and identified his signature on same. It was further deposed that blood-stained earth and empty of TT were recovered vide memos and parcel were prepared; statements of witnesses were recorded. Witness deposed that on the same day, at 11:00 p.m. complainant Nabi Bakhsh produced blood stained clothes of deceased in Police Station, which were taken into possession vide recovery memo and statements of witnesses were recorded; parcel of clothes was prepared: It was further deposed that on 30th August, 2003, case file was entrusted to SHO for further investigation and dead-body of deceased was handed over to his heirs against receipt (Ex. P/8-C), witness identified his signature on the same.
33. In cross-examination, witness stated that he reached hospital at 6:30 p.m. He admitted that witness Muhammad Amin in his statement under Section 161, Cr.P.C. had stated that accused persons in connivance with each other had committed murder of deceased Muhammad Amin.
34. Investigating officer told that Muhammad Din in his statement under Section 161, Cr.P.C., had stated that accused persons had attacked on them, while there is no such mention, in statement of Muhammad Din recorded under Section 161, Cr.P.C. Witness stated that they remained in hospital for about 1(1/2) hours and at 9:50 p.m. reached the place of incident. Witness stated that he had written the memos. He stated that memos were prepared in the headlights of vehicle and they remained at the place of occurrence for one hour. He denfenied that deceased Muhammad Amin was taken to hospital by EHDI authorities. It was stated that complainant of the case had given his oral statement. He denied that complainant had recorded his statement in Police Station. He denied that on receipt of information of incident, complainant reached Police Station. Witness denied that fard-e-biyan was written in Police Station. He denied that after negotiation, complainant got registered the case in Police Station. He denied that complainant and witnesses were not present in hospital. He denied that fard-e-biyan of complainant and statements of witnesses were not recorded in hospital. Witness denied that he had not conducted proper investigation in the case. He denied that all the memos were prepared in Police Station. He denied that he has deposed falsely.
35. After close of prosecution evidence, statement of appellant in his statement recorded under Section-342, Cr.P.C., pleaded that he is innocent and has been falsely involved in the case. He also made his statement on oath under Section 340(2), Cr.P.C., wherein; he deposed that on the day of incident, he was present on his duty at Mastung and was posted as watchman in T&T Office Mastung. On the eventful day, his duty was from 2:00 p.m. to 8:00 p.m. and he had also marked his attendance in Attendance Register. He further deposed that he has not committed any offence and he is innocent, and; clainred justice from the Court.
36. In cross-examination, appellant denied that on the day of incident, he was not present in Mastung.
37. He denied that on the day of incident, he was not present on his duty. He denied that on the day of incident, he had not marked his attendance in Attendance Register. He denied that he in company with other accused persons committed murder of deceased Muhammad Amin. He denied that he remained absconder for a considerable period. He admitted that he was arrested by Mastung Police authorities. He denied that he has deposed falsely.
38. In his defence, appellant produced PW-1 Din Muhammad son of Muhammad Yousaf, who deposed that he is posted as Supervisor in PTCL Mastung; he had brought Attendence Register for the month of August, 2003, wherein; accused Umeed Khan had marked his attendance on 28th August, 2003.
39. Witness produced Register (Ex: D/1-A) and identified the same. It was further deposed that on that day, duty of accused was from 2:00 p.m. to 8:00 p.m. (night).
40. In cross-examination, witness admitted that in Ex. D/1-A, timings of duty is not mentioned. He denied that anyone can mark his attendance during twenty four hours. He admitted that after marking attendance, anyone can go during duty time; voluntarily stated that after obtaining permission. He denied that accused was not on duty from 2:00 p.m. to 8:00 p.m; voluntarily stated that he is duty Incharge. He stated that his duty starts from 9:00 a.m. to 7:00 p.m. He admitted that period of official duty is eight hours; voluntarily stated that if needed, over-time is being taken, He denied that he has deposed falsely.
41. DW-2 Ghulam Shabbir son of Aziz Khan appeared in witness-box and deposed that he is lineman in PTCL Mastung; his duty started from 2:00 p.m. to 8:00 p.m. and duty of accused presept in Court also starts from 2:00 p.m. to a 8:00 p.m. It was further deposed that on 4th Septemb6, 2003, at 5:00 p.m. witness and accused present in Court, were sitting in Exchange, were Ake authorities came and told that accused was nominated in an FIR registered on 28th August, 2003, upon which, they replied that on 28th August, 2003, accused Umeed Khan was present in his office; thereafter, stated that on 28th August, 2003, accused was present with them in Exchange. He identified accused present in Court.
42. In cross-examination, witness denied that he is not an employee of PTCL. He denied that his duty was not from 2:00 p.m. to 8:00 p.m. He denied that on 28th August, 2003, accused was not present with them in Exchange. It was stated that three police persons came to Exchange from Quetta; Police Officials of Mastung were not accompanying them. Witness stated that he is F.Sc.
43. (Intermediate). Witness did not know about the date of previous `Choti Eid' (Eid-ul-Fitr). Witness stated that after arrest of accused, he had not given any statement to police. He denied that he has deposed falsely. He admitted that he had not brought any register or record with him.
44. After assessm ent of evidence, learned Additional Sessions Judge-I, Quetta, vide judgment dated 15th March, 2005, convicted and sentenced the appellant, in the manner, herein-above mentioned.
45. Hence this appeal.
46. Mr. Muhammad Aslam Chishti, learned counsel for appellant, while Mr. Abdul Kareem Langove, appeared on behalf of State. It has been contended by learned counsel for appellant that the prosecution has failed to establish charge against the appellant. It was contended that the appellant was held liable vicariously, while there is no evidence of preconcert, common motive and preplanned preparation.
47. Learned counsel further stressed that the eye-witnesses are inter-related and reliance cannot be made on their statements. The learned counsel in order to support that no overt act is available, relied upon case of Shihab Din v. State (PLD 1964 SC 177) and Athar Khan and 2 others v. State (PLD 1972 Lahore 19). The learned counsel appearing for State urged that there are eye-witnesses, who have implicated the appellant in the commission and on the basis of their statements, having alleged kicks and fist blows, a case of common intention has been established.
48. We have heard learned counsel for parties and perused record of the case. In order to determine the liability of appellant and role ascribed, the prosecution has brought on record, following pieces of evidence:--
(i) Eye-witnesses, PW-1 Nabi Bakhsh, PW-2 Muhammad Ali, PW-4 Muhammad Din and PW-6 injured Hakim Zadi;
(ii) Medical Certificate (Ex. P/5-A), produced by PW-5 Dr. Ghulam Sarwar Hashmi, relating to deceased Muhammad Amin and Medical Certificate (Ex. P/5-B) relating to PW-6 Hakim Zadi; (iii)Site inspection memo (Ex. P/3-A), blood-stained earth obtained vide memo (Ex. P/3-B) having produced in Court as Article-P/1 (Parcel) and Article-P/3 (blood-stained earth) and blood-stained clothes of deceased obtained vide memo (Ex. P/3-D); (iv)An empty of cartridge of TT pistol, obtained vide memo (Ex. P/3-C) and empty produced vide Article-P/6;
(v) Analysis report, produced vide Ex. P/7-C, relating to blood-stained earth and blood-stained shirt and shalwar of deceased;
(vi) Defence has produced record showing presence of accused at Mastung on duty on the day of incident.
49. PW-1 Nabi Bakhsh stated that it was on 28th August, 2003, Muhammad Amin and Muhammad Ali were quarreling with each other. In the evening when he came out from mosque after 'Asar' prayers, saw that Muhammad Alam, Hazoor Bakhsh, Nabi Dad and Umeed Khan, were fighting and saw Muhammad Alam making firing with pistol upon Muhammad Amin, who received bullet injury on his chest and fell on the ground and was shifted to hospital, where he succumbed to the injuries and died. In cross-examination, it has been admitted that they are relative and admitted that accused and Muhammad Ali have garages situated on Gahi Khan Chowk and also having constructed shops in front of said garages. PWMuhammad Ali had demanded ownership and possession of shops and garages. It was also admitted that the accused/appellant is an employee of Government. PW-1 has produced fard-e-biyan (Ex. PA-A), wherein; it has been stated that the accused alongwith Muhammad Alam, Nabi Dad and Hazoor Bakhsh, were standing. After seeing them, started hitting with fist and kick blows. The witness in Court has not stated to have cause fist and kick blows.
50. Statement of PW-2 shows that there was exchange of hot words prior to the incidents, however, people of the area had patched up the matter. He further stated that on the day of incident, four accused, one of them Muhammad Alam armed with pistol, who fired on deceased and committed murder of Muhammad Amin, who received bullet injuries on his chest. Allegations of assaulting deceased with fist and kick blows, have also been made. It has been admitted that the relations between him and accused are not cordial. He has admitted that they have garages and shops in front thereof,' having one wall, however, he has denied existence of dispute over the garages and shops.
51. PW-4 Muhammad Din stated that earlier Muhammad Amin and Nabi Dad had made attack upon their house, which matter was patched up by the inhabitants of the area. It was alleged that on 28th August, 2003, at the time of `Asar' prayer, Hazoor Bakhsh, Muhammad Alam, Umeed Khan and Nabi Dad had assaulted and injured Muhammad Amin near Masjid-eAqsa and person Muhammad Alam made firing with pistol and murdered Muhammad Amin. He stated that bullet hit deceased on his chest and said bullet also hit Hakim Zadi. He had admitted that the place of incident is situated at a distance of 3 % miles from their house.
52. From perusal of above evidence, it is clear that there appears to be no evidence of pre-concerted plan for commission of crime. There is no common intention, as it has not been shown that the other accused except Muhammad Alam, were armed with any weapon. The only evidence is that PW-2 and PW-4 have stated that fist and kick blows were hit to deceased Muhammad Amin. Such evidence has not been established and corroborated by medical evidence (Ex. P/5-A) i,e, Medical Certificate of deceased Muhammad Amin.
53. From scrutiny of evidence, it has clearly established that firing was made by one Muhammad Alam (absconding accused) with pistol, ,which was fatal. The eye-witnesses are closely related to each other and are residents of a place, which is 1% /3% miles away from place of incident. It is also admitted feature of case that the appellant owns a garage and shops in front of said garage possession whereof was sought and here is every possibility of exaggeration and false implication in the commission of offence. There is no direct role, attributed to accused/appellant. There appears to be no pre-concert and common intention to commit Qatl-e-Amd. Section 34 PPC, has been interpreted by a Division Bench of this Court in case of Mehrullah and 2 others vs. State (PLD 1999 Quetta 88). Relevant observations are reproduced herein-below:-- ...........In this behalf, it would not be out of context to refer to the. Judgment delivered in the case of Muhammad Akbar and 2 others v. The State PLD 1991 SC 923, wherein the Hon'ble Supreme Court has held that 'a joint action by number of persons is not necessarily an action performed with a common object, but it may be performed on the spur of the moment as a reaction to some incident and such a case would fall within the ambit of Section 34, P.P.C.' It was further observed in this very Judgement that "mere presence of an accused at the place of incident with a co- accused who commits offence may not be sufficient to visit the former with the vicarious liability, but there should be some strong circumstances manifesting a common intention. Generally common intention inter alia proceeds by some or all of the following elements, namely, common motive, pre-planned preparation and concert pursuant to such plan. However, common intention may develop even on the spur of moment or during the commission of offence, Conversely common intention may undergo change during the commission of offence"."
54. The Honourable Division Bench, in case titled as Mushtaq Ali and 2 others v. The State (1999 MLD 506 Karachi), has been pleased to observe as under:-- "As regards appellant Muhammad Arshad, it is noted that he, admittedly, had not caused any injury to the deceased. Only role assigned to him is that the allegedly caught hold the deceased, while the scuffle was on. This could be with intention to keep the parties aloof from launching attack upon each other. Admittedly, no words were exchanged between him and others appellants at the moment of attack, as such, there was no premeditation nor his action was preconcert nor he inflicted any injury to the deceased. Section 34, P.P.C. declares a rule of criminal liability and does not itself create a distinct offence. In order to determine the common intention regard must be had not only to a particular act but all the acts that were done. To comprehensible understand the scope of Section 34, P.P.C. the provisions of Sections 33, 35, 36 and 38, P.P.C. are to be kept in mind. Section 33 speaks about "act".
55. Section 35 deals with an act, which is criminal only by reason of its being done with a criminal knowledge or intention. Section 36 speaks about effect caused partly by act and partly by omission. Section 37 relates to cooperation by doing one of several acts constituting an offence and Section 38 mentions about persons concerned in criminal act may be guilty of different offences. Looking to the circumstances of this case, we are of the view that Section 34, P.P.C. is not attracted to this case."
56. Above view is further fortified with the view, expressed in the judgments reported in 2002 P.Cr.L.J.
57. 1072 and PLD 1972 Lahore 19. We have no hesitation in concluding that the prosecution has failed to establish common intention.
58. The other piece of evidence is medical reports (Ex. P/5-A) and (Ex. P/5-B), produced by PW-5 Dr. Ghulam Sarwar Hashmi. Ex. P/5-A is certificate relating to deceased Muhammad Amin, showing bullet injury of entrance and exit on the epigastrium and back of deceased. There are no marks of abrasion and other marks having been sustained by kicks and fist blows. The medical evidence has not supported the version of PW-2 and PW-4, is directly in conflict to ocular version. Similarly, medical evidence ,relating to Hakim Zadi is also not supported and helpful to prosecution in respect of present accused. The Honourable Supreme Court had held relating to ocular evidence, when it is in conflict with medical evidence in the following terms in the case of Bagh Ali vs. Muhammad Anwar and another (1983 SCMR 1292):-- "...... The version of Ghulam Nabi (P.W.) that the accused struck three blows with a hatchet on the neck of the deceased, one while he was in standing position and second when he was knocked down, appears to be in conflict with the medical evidence. The argument of the learned counsel that it was for the accused to have clarified in his cross-examination from the doctor, whether the injury found on the neck of the deceased could be the result of a single blow is not tenable. There was an apparent contradiction in the doctor's saying that he found only one injury and the ocular testimony stating three injuries, which it was the obligation of the prosecution to clarify and not of the accused."
59. The other pieces of evidence are corroboratory in nature and would not be of any help to prosecution, without discussing plea of alibi and defence version with regard to non-presence of accused, we are of the view that the prosecution has failed to bring guilt at home against the present accused/appellant, having failed to prove pre-concert and common intention within the purview of Section-34, PPC.
60. In view of the reasons stated above, the impugned judgment of conviction, is not sustainable and is directed to be set aside, and; the appellant is acquitted of the charge. He be set at liberty, if not required in any other case.