1. ' MEHTA KAILASH NATH KOHLI, J.--- This appeal is directed against judgment, dated 30th January, 2004, passed by learned Special Judge, Anti-Terrorism Court, Khuzdar, whereby; respondents- accused were acquitted of the charge under section 302/34, P.P.C. Read with sections 6(i) and 7(h) of Anti-Terrorism Act, 1997.
2. ' Facts of the case, in brief, are that F.I.R. No,65 of 2003, dated 13th June, 2003 was registered at Police Station Hub, District Lasbella under section 302/34, P.P.C. By one Ghulam Mustafa son of Dost Muhammad, caste Reki, resident of Mengal Abad, Hub, wherein, it was alleged that he along with his brother Abdul Rahman were residing in Mengal Abad, Hub since 5/6 years. On the eventful day, his brother Abdul Rahman along with his brother-in-law Abdul Nabi having boarded on motorcycle were going towards Bazar, in their way, two cars crossed them and made firing upon them, in result whereof, his brother-in-law Abdul Nabi and his brother Abdul Rahman died on the spot.
3. Complainant named Daroo Khan, Muhammad Khan, Daulat Khan, Zahir Khan, Tahir Khan, Raz Muhammad, Abdul Rahman alias Dakeit, residents of Mengal Abad to be the persons, who having boarded in the car made firing upon his brother and brother-in-law. On the basis of above F.I.R.
4. Respondents Nos.1 to 5 were arrested, while respondents Muhammad Khan and Abdul Rahman alias Dakeit were declared as absconders. After completion of investigation, respondents were sent up to face their trial in the Court of competent jurisdiction. Learned Special Judge, Anti-Terrorism Court, Khuzdar took cognizance in the matter. On 3rd December, 2003, charge under section 302/34, P.P.C. Read with sections 6(i) and 7(h) of Anti-Terrorism Act, 1997, was framed and read over to the respondents, to which the arrested respondents did not plead guilty and claimed trial.
5. ' To substantiate accusation against respondents-accused, prosecution produced P. W.1 Ghulam Mustafa son of Dost Muhammad (complainant), who has reiterated the version set up in the F.I.R.
6. On his written report (Exh.P.1/A) F.I.R. Was registered. Motive behind the incident was statedly that accused Daroo Khan got registered a false case of abduction against deceased Abdul Rahman, and he was acquitted in that case, as such; the accused persons committed murder of his brother.
7. In cross-examination, he stated that on receipt of information he rushed toward the place of incident and took away the injured to hospital. It was stated that both deceased persons sustained many fire-arm injuries. It was admitted that on hearsay version, he had named the accused persons. It was stated that he had filed private complaint against Raz Muhammad and S.H.O. Hub namely Abdullah in the Court of Sessions Judge, Hub, which was withdrawn on the basis of compromise, arrived between him and Abdullah. It was admitted that he had not disclosed the motive behind incident in the F.I.R. He denied that accused-respondents had not committed murder of deceased persons.
8. ' P.W.2 Sanaullah son of Dost Muhammad appeared and deposed that on 13th June, 2003, he offered Jumma Namaz in Masjid and after recitation from Holy Qur'an he along with Sultan Muhammad came out and were going towards Sakran Road, in the meanwhile they heard voice of brakes of a vehicle, as well as, dragging of motorcycle. Witness saw that in a white coloured Alto Car, Daroo Khan, Muhammad Khan, Zahir Khan, Tahir Khan and Rahman Dakeit along with sixth person alighted from vehicle duly armed with kalashnikovs and started abusing Abdul Rahman and Abdul Nabi, thereafter, they made firing upon them and made Lalkara that they should be killed, in result whereof, both Abdul Rahman and Abdul Nabi died on the spot. He further stated that he went ahead and along with other people took away the dead bodies to hospital. In cross- examination, he did not remember that how many fire shots were made. It was admitted that accused persons also reside in the same area. It was stated that his statement under section 161, Cr.P.C. Was recorded on 18th, while the incident took place on 13th. Suggestions made in favour of accused-respondents were denied. P.W.3 Shah Muhammad son of Muhammad Hassan and P.W.4 Sultan Muhammad son of Darya Khan have supported the version of P.W.2.
9. ' P.W.5 Aamir Farooqi A.S.P./S.D.P.O. Hub appeared and stated that identification parade of accused persons was made in presence of two private witnesses namely Doctor Attaullah and Hazoor Bakhsh, in whose presence, witnesses Shah Muhammad and Sultan Muhammad identified accused Daroo Khan, Daulat Khan, Zahir Khan and Tahir Khan to be the same, and thereafter; identification memos. (Exhs.P./5-A to P.5/E) were prepared. In cross-examination, he has denied the suggestions regarding legality of process of identification parade.
10. ' P.W.6 Muhammad Luqman son of Muhammad Zaman is the witness of recovery of blood-stained clothes of deceased persons, in whose presence blood-stained clothes of deceased Abdul Rahman and Abdul Nabi were taken sealed in parcel by S.-I. Mehdi Bugti and were taken into possession through recovery memo. (Exh.P.6/A). He had identified parcel of blood-stained clothes of deceased Abdul Nabi as Article P.1, which was opened, he also identified blood-stained clothes (Article P.2), as well as, sample of seal (Article P.3). Similarly, he identified parcel (Article P.4) containing blood-stained clothes of deceased Abdul Rahman (Article P.5) and sample of seal (Article P.6). In cross-examination, he remained firm with his examination-in-chief.
11. ' P.W.7 Muhammad Aslam constable deposed that on 13th June, 2003, he along with S.-I. Mehdi Bugti went to the place of incident, where one black coloured Honda motorcycle (CG-125) was lying, which was taken into possession through recovery memo. (Exh.P.7/A). He also identified above said motorcycle as Article P.7. In cross-examination, he stated that at the time of their arrival on the spot, dead bodies were removed, while motorcycle was lying on left side of the road. He did not remember that map of the place of recovery of motorcycle was prepared or not; voluntarily stated that S.-I. Was preparing map. He denied the suggestions that he was not accompanying S.- I. Mehdi Bugti and no motorcycle was recovered from the place of incident.
12. ' P.W.8 Ghulam Mehdi, Investigating Officer appeared and produced F.I.R. (Exh.P.8/A). He stated that investigation of the case was handed over to him and thereafter, he visited the hospital and examined the dead bodies, thereafter, he prepared site plan (Exh.P.8/B), as well as, collected empties of kalashnikov from the spot through recovery memo. (Exh.P.8/C). He identified parcel No,1 (Article P.8) containing empty cartridge of kalashnikov and parcel No,2 (Article P.9) containing bullet of kalashnikov. It was stated that statements of witnesses were recorded on the spot, and thereafter; dead bodies were shifted to Abbasi Hospital, Karachi for the purposes of post-mortem, from where death certificates (Exhs.P.8/D and P.8/E) were obtained. It was further stated that he had conducted proceeding under section 174, Cr.P.C., with regard to each dead body through memo. (Exh.P.81F) and prepared inquest report (Exh.P.8/G), and thereafter; both the dead bodies were handed over to their relatives against receipt (Exh.P.8/H). He had attempted to arrest the accused persons nominated in the F.I.R., in the meantime on 17th June, 2003, he went to Islamabad with regard to departmental training, and; investigation of the case was entrusted to Sub- Inspector Maqsood. This witness also produced reference slips (Exhs.P.8/J and P.8/K) issued by the doctor in respect of both the dead persons. This witness was thoroughly cross-examined with regard to recoveries and investigation conducted by him.
13. ' P.W.9 Maqsood Anwar, Sub-Inspector had completed investigation in the case. He stated that he along with Duty Officer went to hospital where dead bodies of Abdul Rahman and Abdul Nabi were lying having sustained fire-arm injuries on their whole body. He identified sealed parcel (Article P.10) containing empty cartridge of kalashnikov (Article P.11), sample of seal (Article P.12), similarly he identified parcel No,2 (Article P.13) containing bullet of Kalashnikov (Article P.14) and sample of seal (Article P.15). It was stated that on 18th June, 2003, investigation of the case was handed over to him by Sub-Inspector Mehdi Bugti. On the same day, he recorded statements of eye-witnesses namely Shah Muhammad, Sultan Muhammad and Sanaullah and on completion of investigation, incomplete challan (Exh.P.9/A) was prepared and produced in the Court, and after arrest of some more accused persons and completion of investigation to their extent, incomplete challan (Exh.P.9/B), was submitted in the Court. In cross-examination, he denied the suggestions made in favour of accused-respondents, as well as, also denied the suggestions made against authenticity of his investigation and preparation of challans.
14. ' On close of prosecution evidence, statements of arrested accused-respondents were recorded under section 342, Cr.P.C., wherein; they pleaded their innocence. Respondents Daroo Khan, and Daulat Khan also made their statements on oath under section 340(2), Cr.P.C. As well as, produced D. W.1 Nazir Khan son of Gul Zameer and D.W.2 Shafi Muhammad alias Baby son of Haji Abdul Rahman in their defence.
15. ' After conclusion of trial and assessment of evidence, learned Special Judge, Anti-Terrorism Court, Khuzdar, vide judgment, dated 30th January, 2004, acquitted the accused-respondents by concluding in the following terms:-- "I have heard arguments of both the parties and perused the record of the case. It is admitted position that complainant P.W.1 Ghulam Mustafa is not eye-witness of the case. It is also admitted position that complainant has not given names of eyewitnesses Sanaullah, Shah Muhammad and Sultan in the F.I.R. All of sudden after 5 days they went to the Police Station Hub along with complainant Ghulam Mustafa and recorded 161, Cr.P.C. It is very strange that 2nd Investigating Officer Maqsood Anwar S.-I. Why recorded statements of three witnesses when their names were not mentioned in the F.I.R. 2nd Investigating Officer has not further recorded 161, Cr.P.C. Statement of complainant that P. Ws. Sanaullah, Shah Muhammad and Sultan are eye-witnesses. It means that 2nd Investigating Officer with the consultation of Ghulam Mustafa recorded statements of three eye-witnesses with mala fide ulterior motive for possessing of adjacent lands. P.W. Shah Muhammad on the day of incident went to jungle for cutting woods but 2nd Investigating Officer admitted in cross that near place of incident there is no Jungle. Hence it is clear that P.W. Shah Muhammad statement is doubtful. In cross admitted that deceased Abdul Rahman's wife and his wife are sisters. Hence P.W.3 Shah Muhammad has given false evidence just to relationship of wife of deceased and P.W's. Wife.
16. ' From the statement of P.W.1 to P.W.9 prosecution has not proved its case beyond shadow of doubt against accused Daroo Khan, Daulat Khan, Zahir Khan, Tahir Khan, Raz Muhammad and absconding accused Abdul Rahman alias Dakeit and Muhammad Khan. Hence all the accused are acquitted from the charge."
17. ' Being aggrieved of aforementioned acquittal order passed by trial Court, present appeal has been filed by complainant Ghulam Mustafa before this Court.
18. ' Miss Saima Najam, learned counsel appeared on behalf of appellant-complainant, while Mr. Ali Ahmed Kurd, learned counsel appeared for respondents-accused, as well as, Mr. Amanullah Tareen, learned Assistant Advocate-General represented the State.
19. ' Learned counsel for appellant-complainant has strenuously contended that there are three eye- witnesses, who have deposed against accused persons, categorically in cross-examination, the veracity of the said witnesses have not been shaken or dislodged. It was further contended that there was identification parade held, whereby; accused-respondents were identified by P.Ws.3 and 4 namely Shah Muhammad and Sultan Muhammad, which was not considered by the learned trial Court at all. It was further averred that the learned trial Court has seriously erred in concluding that the statement of P.W. Shah Muhammad is not worthy of credence, as he is related to the deceased on account of the fact that wife of said witness is the sister of deceased Abdul Rahman's wife. It was further contended that the basis for acquittal of accused-respondents are that there is delay of five days in recording statements of witnesses. It was also contended that the said statements appear to have been recorded with delay on account of first Investigating Officer's having proceeded to Islamabad for training, while second Investigating Officer, who was entrusted with investigation of the case on 18th June, 2003: ' On the other hand, learned counsel for respondents-accused while supporting order of trial Court have stated that there are material contradictions in the statements of witnesses, thus; the order of acquittal is proper, legal and requires no interference.
20. ' We have considered the arguments advanced by the learned counsel for the parties and perused the record. We are mindful of the fact that the respondents have been acquitted of the charge and have earned double innocence, and; it is to be seen as to whether statements recorded by Court below, who are alleged to be the eye-Witnesses and the conclusions drawn are based on misreading of record, shocking and are perverse as held by superior Courts. Statement of P. W.1 is based on the information and he is not eye-witness, while P.W.2 Sanaullah in his statement clearly implicated the accused-respondents having stated that he had seen one white coloured Alto Car, from which accused-respondents Daroo Khan, Muhammad Khan, Zahir Khan, Tahir Khan, and Abdul Rahman alias Dakeit along with sixth person alighted duly armed with kalashnikovs; they abused both deceased Abdul Rahman and Abdul Nabi and made firing with kalashnikovs. It was further stated that they had also stated that they (deceased) should not be left and to be killed and after making firing, accused persons went back towards city. On account of firing of accused persons, deceased Abdul Rahman and Abdul Nabi died. Thereafter, witness went towards the dead body of Abdul Rahman and by that time, Shah Muhammad and other people had reached on the spot; Jamal and Ali Hassan had also come over there. In cross-examination, suggestions were made that how much rounds were fired, however; it was stated that the motor vehicle was being driven by accused Daroo Khan and two persons were sitting on the front seat, while four persons were sitting on the rear seat. It was stated that after funeral, which had taken on the next day, he was sitting and offering "Fatiha". He has admitted to have given the statement of police authorities on 18th while, the incident took place on 13th. Efforts were made to make certain improvements with regard to the fact that the accused Abdul Rahman along with other accused persons alighted from the vehicle and about kalashnikov was not stated, further stated that deceased persons could not be left and be killed. In the cross-examination, it has come on record that accused Daroo Khan was having muffled his face, while other accused persons were with open faces. He denied that he had not seen the incident and at the instance of his brother Ghulam Mustafa and other relatives, he has made his statement. It was denied that there was a dispute relating to lands which they have purchased. No mala fides have been alleged for recording statement under section 161, Cr.P.C. With delay nor any explanation was asked, although; this witness had stated that they were sitting on "Fatiha" after having funeral made on the next day i.e. 14th June, 2003.
21. Statement of P.W.3 Shah Muhammad states that on hearing noise of brakes, he saw that six persons were firing at deceased i.e. Abdul Rahman and Abdul Nabi with kalashnikovs and have named Daroo Khan, Daulat Khan, Muhammad Khan, Rahman Dakeit, Tahir and Zahir. He had stated that one dead body was lying in a ditch, while dead body of Abdul Nabi was lying on the road. It was also stated that accused persons were abusing while they were firing from car. Witness reached near the dead bodies, before his reaching Sanaullah was weeping, taking Abdul Rahman in his hands, while Abdul Nabi was in the arms of Sultan. He stated that said incident had taken place on 15th. He has also stated that the identification parade of accused Daroo Khan, Daulat Khan, Muhammad Zahir, Muhammad Tahir was conducted separately, who were made to stand in fifteen people. This identification parade was conducted thrice and at that stage A.S.P. And S.H.O.
22. Were also present. He also stated that he identified accused Daroo Khan, Daulat Khan, Zahir Khan and Tahir Khan on the spot. He had also stated that he had identified accused Muhammad Khan and Abdul Rahman alias Dakeit on the spot, who were not present on the day of identification parade. He was thoroughly cross-examined; he denied that from forest side, road is not visible.
23. Suggestions were made that he was not present on the place of incident and several improvements were alleged to have been made, which were denied. P.W.4 Sultan also confirms the firing made immediately on their coming out from Masjid after having offered prayers and recitation of Qur'an Majeed. He stated that they heard noise of Alto Car brakes, from which six persons alighted and made firing upon Abdul Rahman and Abdul Nabi. The names of accused persons were told as Daroo Khan, Muhammad Khan, Tahir Khan, Zahir Khan, Rahman Dakeit, while he did not remember the name of sixth person and he had also not seen the fact of sixth person. In cross-examination also, he has denied to had got recorded his statement after six days of the incident and also denied that at the instance of Ghulam Mustafa he has made his statement. It was also suggested that he had not named Daroo Khan and it was also denied that these people had not made firing upon the deceased persons. P.W.5 Aamir Farooqi A.S.P./S.D.P.O., who had stated that identification parade of accused persons, was made by the witnesses. P.W. Shah Muhammad had identified accused Daroo Khan. The said process was repeated thricely. He had also stated about preparation of memo. Of identification and similarly the accused namely Daulat, Tahir and Zahir were also identified by P.W. Shah Muhammad. He further stated that on 20th October, 2003, the identification parade was made by witness Sultan Ali, who had also identified accused Daroo Khan and Daulat Khan. He had produced identification memos. Of accused persons as Exh.P.5/A and Exh.P.5/E. He had also identified accused persons present in the Court.
24. Suggestion made that the identification parade was not properly made, was denied and also denied that all the proceedings were made falsely. P.W.6 Muhammad Luqman is the witness, who had taken the dead bodies to Karachi Hospital, where their post-mortem were conducted and the clothes of deceased. Abdul Rahman were taken into possession vide recovery memo. (Exh.P.6/A); he had also identified parcel (Article P.4) containing blood-stained clothes of deceased Abdul Rahman (Article P.5), as well as, parcel (Article P.1) containing bloodstained clothes of deceased Abdul Nabi (Article P.2). P.W.7 Muhammad Aslam is the recovery witness of Honda motorcycle (Article P.7), which was taken into possession vide recovery memo. (Exh.P.7/A). P.W.8 Ghulam Mehdi, Sub-Inspector is the Investigating Officer, who had initially investigated the matter. He produced F.I.R. (Exh.P.8/A). He had visited the place of incident and prepared site map (Exh.P.8/B); he had also collected one empty cartridge of kalashnikov and sealed in parcel (Article P.8), as well as, cartridge was also secured and sealed in parcel (Article P.9) and were taken into possession vide recovery memo. (Exh.P.8/G). After conducting post-mortem of both the dead bodies, he had received death certificates (Exhs.P.8/D and P.8/E), thereafter he prepared inquest reports (Exhs.P.8/F and P.8/G) and after completion of formalities the dead bodies were handed over to their relatives against receipt (Exh.P.8/H). He had produced reference slips (Exhs.P.8/J and P.8/K) issued by the doctor in respect of both deceased persons. Thereafter he proceeded to Islamabad for departmental training, and; rest of the investigation was conducted by P.W.9 Maqsood Anwar, Sub-Inspector, who had recorded statements of witnesses. After completion of investigation, he had submitted incomplete challans (Exhs.P.9/A and P.9/B). Thereafter, accused persons had filed application for pre-arrest bail, which was refused vide order, dated 10th October, 2003 and they were accordingly arrested. Accused persons were identified by eyewitnesses namely Shah Muhammad and Sultan Muhammad and on 21st October, 2003, accused persons were remanded to judicial lock-up. He had identified the identification documents. He had stated that accused Abdul Rahman alias Dakeit and Muhammad Khan had not been arrested.
25. ' In defence, while recording statements under section 342, Cr.P.C., accused Daroo Khan stated that since they were known to the eye-witnesses that's why they had identified them. Similar statements have been made by Daulat Khan, Zahir Khan, Tahir Khan and Raz Khan. Statements recorded under section 340(2), Cr.P.C., were recorded by accused Dawood Khan alias Daroo Khan and Daulat Khan. Dawood Khan alias Daroo Khan stated that on the day of incident he was at Peshawar and had produced document (Exh.D.1), which is photocopy of a document and was drawn in June, 2003. He had also stated that he returned back on 14th June by air and had produced air ticket (Exh.D.2). He had also produced boarding card (Exh.D.4). He admitted that original document has not been produced. He stated that his name has been incorporated as Dawood Khan alias Daroo. He denied that the ticket does not pertain to him nor the said ticket was obtained from travel agency or PIA Office. He had not been able to show as to how that ticket was obtained. Ticket (Exh.D.2) shows that the same is in the name of Dawood Khan Mr. For coming from Peshawar to Karachi, while; tickets of Faisal lqbal (Exhs.D.3 and D.5) and tickets of Shafi Muhammad (Exhs.D.6 and D.8), as well as, ticket of accused Daulat Khan (Exh.D.9) show departure on 11th June.
26. ' Before adverting to the plea raised by respondents-accused, it is to be seen that the prosecution produced P. W.1 to P.W.4, who have not been suggested with the plea that they had obtained tickets of Peshawar, nor such documents were handed over or confronted to the Investigating Officers (P.W.8 and P.W.9). Only suggestion was made that on the day of incident, accused Daroo alias Dawood and Daulat were present at Peshawar. These documents were never handed over for verification to the Investigating Officers or were confronted during course of evidence. These documents have also not been proved by any witness; authenticity of documents is doubtful. In the circumstances of the case, the said documents cannot be relied upon and are taken out of consideration. So far as implication of accused persons is concerned, they have been acquitted on the pretext that from statements of eye-witnesses i.e. P.Ws.2, 3 and 4, the only reasoning for acquittal of accused persqns is that their statements under section 161, Cr.P.C. Have been recorded after five days of the incident. It was stated by P.W.1 that "Fatiha" was being taking place while burial of deceased were made on the next day of incident. Moreover the explanation has also come on record that P.W.9 was entrusted investigation of the case on 18th of said month. Furthermore, no mala fides have been alleged that there is any motive behind for involving the present accused persons falsely. They have been nominated from the inception of incident. Thus, the statements so recorded by the prosecution after five days with plausible explanation are of worth reliance, while; the said eye-witnesses have also identified the accused persons during identification parade.
27. Accused Daroo Khan, Daulat Khan, Tahir Khan and Zahir Khan were identified by P. Ws.2 to 4, but accused Raz Muhammad was not identified. The said evidence has been further supported by the recovery of blood-stained clothes, empties of kalashnikov and cartridge of kalashnikov, as well as, inquest reports, produced in this behalf. Above statements of accused persons and identification was confronted to accused in statements recorded under section 342, Cr.P.C. Stated that they were already known to the eyewitnesses.
28. ' In the circumstances of the case, there is positive evidence against accused persons except accused Raz Muhammad, involving them in the commission of offence supported by identification parade and the findings recorded by the learned trial Court are perverse, based on non-reading of record and are not sustainable in view of the reasons stated above, and thus, orders are set aside.
29. We after having setting aside the acquittal order, dated 30th January, 2004 passed by learned Special Judge, Anti-Terrorism Court, Khuzdar, hold that accused persons namely Daroo Khan, Daulat Khan, Zahir Khan, Tahir Khan, Muhammad Khan and Abdul Rahman alias Dakeit except accused Raz Muhammad are guilty of the offence. Since all of them have committed the offence with common sharing of intention and it is not known that firing of which of the accused was fatal to the deceased persons, thus; are accordingly convicted to life imprisonment each, under section 302(b), P.P.C. Read with section 7(h) of Anti-Terrorism Act, 1997 and are further directed to pay Rs,20,000 each as fine, on recovery payable to the legal heirs of deceased Abdul Rahman and Abdul Nabi as provided under section 544-A, Cr.P.C. In default of payment of amount the accused persons shall further undergo two years' S.I. Each with benefit of section 382-B, Cr.P.C. Accused respondent Raz Muhammad is acquitted of the charge.
30. ' The appeal is allowed and accordingly, disposed of.