1. Mehta Kailash Nath Kohli, J.--This appeal is directed against judgment dated 18th December, 2006 passed by Additional Sessions Judge-I, Sibi in Sessions Case No. 31 of 2001, whereby; appellant Ghulam Rasool son of Haji Abdul Khaliq alias Azizullah caste Buhar, resident of Bhag has been convicted under Section 302(b) PPC and sentenced to death, he was further directed to pay Rs.1,00,000/- as compensation to legal heirs of deceased Muhammad Aslam, in default whereof; to further undergo SI for two years. Appellant was further convicted under. Section 302(b) PPC for committing murder of Mst. Marvi and sentenced to suffer life imprisonment with payment of Rs.
2. 1,00,000/- payable to legal heirs of deceased Mst. Marvi as compensation, in default of payment thereof, to further undergo SI for two years. Murder Reference (S) 20 of 2006 has sent by the trial Court for confirmation of sentence of death awarded to the appellant. This judgment shall dispose of both these criminal appeal and murder reference.
3. Facts of the case, in brief, are that on 10th March, 2001, an FIR No. 15 of 2001 under Section 324/302 Qisas and Diyat Ordinance read with Section 34, PPC was registered by Police Station Dhadar, District Sibi on the report of complainant Ghulam Hussain son of Sanhran Khan, caste Jobar, resident of Rind Ali, stating therein that he alongwith his brother Hazoor Bakhsh and family is residing on the above said address. It was further stated that on account of some work he had gone to Dera Allah Yar and on the eventful day at 11:30 a.m. he came back to his house, in the meantime; his nephew namely Muhammad Shareef came there and informed him that in the house of Muhammad Siddique son of Hazoor Bakhsh resident of Bhag, who was presently residing at Raisani Mohalla Rind Ali, his cousin Muhammad Aslam son of Hazoor Bakhsh and wife of Muhammad Siddique namely Mst. Marvi were lying in pool of blood; on said information, he alongwith Muhammad Shareef and Shakal Khan son of Afzal, reached at the house of Muhammad Siddique and saw Muhammad Aslam and Mst. Marvi lying in pool of blood and no one was present in the said house, in the meanwhile inhabitants of the Mohalla reached on the spot. On enquiry mother of Muhammad Aslam informed that about two/three hours ago Muhammad Siddique son of Hazoor Bakhsh came to dairy farm and asked Muhammad Aslam that one Muhammad Alam was present in his house and took him to his house on the pretext of doing some urgent work.
4. Motive behind the incident was alleged that on the allegations of Siah Kari, Muhammad Aslam and Mst. Marvi were attacked upon and injured with blows of axe by Muhammad Siddique and Muhammad Alam and killed them. Consequently, appellant was arrested and after completion of investigation challan was submitted in the Court of competent jurisdiction and appellant was remanded to judicial lock-up. Learned Additional Sessions Judge, Sibi took cognizance in the matter and on 21st November, 2001 framed charge to which, the appellant pleaded not guilty and claimed trial.
5. The prosecution to substantiate accusation against appellant, produced following evidence:-- PW-1 Ghulam Hussain is the complainant, who has appeared in witness-box and reiterated the contents of FIR (Ex: P/1-A). He has further deposed that as per Balochi Ahwal, it transpired that actual culprits were Ghulam Rasool, Majeed, Siddique and Alam, who in connivance of each other had committed the murder, as such; he made supplementary statement in the police station.
6. In cross-examination, he stated that at 11:00/11:30 a.m. he received information of murder of Muhammad Aslam; within ten minutes, he reached on the spot from where he alongwith Police official shifted injured Muhammad Aslam to Civil Hospital Dhadar, and; at 2:00 p.m. Muhammad Aslam was referred to Civil Hospital Quetta; he had not accompanied the deceased to Quetta, while, Muhammad Shareef, Muhammad Ashraf brother of deceased namely Sona Khan and other persons were accompanying the deceased; further stated that on the next day he had gone to Quetta. It was stated that on seventh day of the incident i.e. 17th March, Muhammad Aslam died, and he was buried in Rind Ali. He has stated that in the FIR (Ex: P/1-A) it was not mentioned that Muhammad Aslam was killed; voluntarily stated that Muhammad Aslam was shown as seriously injured. He has further stated that Mst. Marvi was wife of accused Muhammad Siddique, who was murdered on the same day; further stated that Muhammad Aslam was murdered in the house of accused Muhammad Siddique. He has stated that after ten/twelve days of the incident, Habibullah son of Muhammad Ibraheem and Dad Muhammad son of Qadir Bakhsh, residents of Sibi, while giving Balochi Ahwal, informed him about involvement of present accused. He has admitted that his supplementary statement was recorded on 27th March, 2001. It was admitted that his supplementary statement does not contain names of Habibullah and Dad Muhammad. He showed his ignorance that a case regarding murder of Muhammad Aslam was registered on the day of incident. He has admitted that he had not produced Habibullah and Dad Muhammad for recording their statements under Section 161, Cr.P.C, however; stated that after two months of the incident he had informed Police about said persons, and the Police had summoned them and their statements were recorded on 3rd June, 2001. It was stated that Habibullah is maternal cousin, while Dad Muhammad is maternal cousin of his mother; both of them came for Fatiha of Muhammad Aslam after 10/15 days of the incident. It was further stated that deceased Muhammad Aslam and accused Muhammad Siddique are not interse relatives. It was also stated that Muhammad Siddique had called Muhammad Aslam to his house on the pretext of doing electric work. He has denied the suggestion that after fleeing of accused Muhammad Siddique, present accused being his relative has been falsely involved in the present case.
7. PW-2 Habibullah son of Muhammad Ibraheem appeared and deposed that about one year and three months ago, he alongwith Dadullah went from Sibi to the dairy farm of Muhammad Aslam at Dhadar, where Muhammad Aslam after grazing his cows was coming back. He further deposed that at 10:00 a.m. Muhammad Siddique came there and asked Muhammad Aslam to go with him at his house for doing electric work and Muhammad Aslam while going with Muhammad Siddique told them that he will come back within ten minutes. Witness stated that they waited for long but Muhammad Aslam did not return; after half an hour he and Dadullah went to the house of Muhammad Siddique, there was hue and cry of womenfolk in his house; they saw that a women was lying dead and her blood was lying clot; on going ahead they saw that Muhammad Aslam was caught hold by Muhammad Siddique, Ghulam Rasool and Majeed, while Alam was inflicting him axe blows, in result whereof he became seriously injured and fell down and the accused persons namely Muhammad Siddique and Muhammad Alam having boarded on two motorcycles fled away from the scene, while remaining two persons went on foot. He has stated that they had informed Muhammad Shareef about the incident and returned back to Sibi. He had identified present accused to be the same.
8. In cross examination, he denied that deceased Muhammad Aslam was his maternal cousin; voluntarily stated that he was his relative. He has stated that in their presence Police had reached and their statements were also recorded by the Police. He has stated that deceased lady was wife of Muhammad Siddique. He denied that on the allegations of Siah Kari, Muhammad Siddique killed his wife and Muhammad Aslam. He denied that after absconsion of Muhammad Siddique, he and Dad Muhammad were nominated as witnesses just to falsely involve the present accused. He denied that he and Dad Muhammad were not present on the spot nor they had witnessed the incident. He denied that at the instance of complainant of the case, on 3rd June, 2001, Police had recorded his statement. He had stated that Muhammad Aslam succumbed to injuries on the spot; voluntarily stated that he fell down and after six/seven days he died in Quetta. He admitted that dead-body of lady and injured Muhammad Aslam were lying in the house of Muhammad Siddique. He stated that present accused is paternal cousin of absconding accused Muhammad Siddique. It was stated that he had informed Muhammad Shareef, Muhammad Shareef informed complainant Ghulam Hussain, who after ten/twelve minutes reached on the spot.
9. PW-3 Khalida Parveen, Staff Nurse appeared and stated that on 10th March, 2001, she was posted in civil hospital. Dhadar; at 03:00 p.m. dead-body of Mst. Marvi was brought to hospital for examination. She further deposed that by the order of Doctor Lal Muhammad, Medical Officer, she had conducted examination of dead-body and obtained three vaginal swabs and kept the same in three bottles, which were handed over to the Medical officer. In cross-examination, she admitted that she has no authority to examine a dead-body.
10. PW-4 Doctor Lal Muhammad appeared and stated that on 10th March, 2001, he was posted as Medical Officer, Civil Hospital, Dhadar; at 01:00 p.m. injured Muhammad Aslam son of Hazoor Bakhsh was brought by SHO, Dhadar with history of assault. He had examined the injured and found following injuries on this person:-- "Injuries:
1. Incised wound on the occipital region length 4" depth. Bone (fracture) the skull bone and width 1/2".
2. Incised wound on the right side of head near the right ear length 5", depth # the skull bone and width 1/2" .
3. Incised wound on the left side of the head near' left ear length 6" width 1/2" depth up to bone.
4. Incised wound on the neck front side length 4".
5. Incised' wound in between the chest in front (between both breast) length, 4".
6. Nature of injuries:--grievous, fresh. Weapon used:--sharp edge.
11. Treatment. Stitching and dressing."
12. After providing medical treatment, injured was referred to Sandeman Provincial Hospital, Quetta and in this regard he had issued medical certificate (Ex; P/4-A) bearing his signature.
13. He has further deposed that on the same day at 3:00 p.m. dead-body of Mst. Marvi was brought for medical examination to which he examined and opined as under:-- Injuries:
1. Incited wound on the occipital region 4" in length, 1/2" width and depth up to bone.
2. Incised wound on the back side of the skull length 6", width 1/2" and depth up to bone.
3. Incised wound on the left patella 3" in length.
14. RESULT Death occurred 06 hours before bringing to hospital.
15. Internal Examination. Conducted through Khalida Parveen Staff/Nurse of the hospital, which were sent to FSC Laboratory, Karachi.
16. After medical examination, he issued medical certificate of Mst. Marvi as Ex: P/4-B. He had also produced copy of FSL report as Ex P/4-C.
17. In cross-examined, he stated that vaginal swabs were handed over to SHO for sending the same to FSL, who refused to send the same, as such; on 12th March, 2001 the witness sent the same and on 31st July, 2001 report of chemical examiner (Ex: P/4-C) was accordingly received by Civil Hospital, Dhadar. The said report does not confirm Siah Kari as no semen of deceased Aslam were found in semen of Mst. Marvi and vice-verse. He has denied the suggestion that he has no authority to send any sample for examination to FSL, Karachi.
18. PW-5 Shakal Khan, shopkeeper appeared and deposed that on 10th March, 2001, he was present in his autos shop at Dhadar; at 10:30 a.m. Ghulam Hussain came to his shop and informed him that Muhammad Aslam was murdered, as such; he reached on the spot where people were gathered and an axe was lying in front of the door.
19. He further deposed that on enquiry from the people present there, he was informed that dead- body of Muhammad Aslam was shifted to some other place. This witness was not cross-examined by the defence counsel.
20. PW-6 Muhammad Shareef, shopkeeper appeared and deposed that on 10th March, 2001, he was present in his shop at Rind Ali; co-accused Muhammad Alam and Muhammad Siddique boarded on motorcycle came to his shop and told him that they had murdered Muhammad Aslam and wife of Muhammad Siddique, the dead-bodies whereof were lying in his house and, asked him to collect the same.
21. Witness further deposed that he informed his uncle Ghulam Hussain, while in his way, Dad Muhammad and Habibullah also met him who also informed him about murder of Muhammad Aslam.
22. In cross-examination, he stated that at 10:30 a.m. he alone was present in his shop where accused persons came. He stated that deceased Muhammad Aslam was his paternal cousin. He has stated that within four/five minutes of the information, he closed his shop and went to his uncle's house and informed him about the incident. He stated that his statement under Section 161, Cr.P.0 was recorded in the Police Station, wherein he had stated that in his way, Dad Muhammad and Habibullah met him and informed about murder of deceased Muhammad Aslam (Confronted, not so recorded) . He denied that on the day of incident accused Muhammad Alam and Muhammad Siddique had not come to his shop and informed him about the commission of offence.
23. PW-7 Dad Muhammad son of Haji Qadir Bakhsh appeared and made similar statement as that of PW-2 Habibullah. It has been stated that on 10th March, 2001 he was sitting alongwith Aslam in dairy farm; while Habibullah was with them. Further stated that Siddique came and informed that there is a fault in his electricity, which is not in order and requested to do the repair. Muhammad Aslam went with him saying that he will be back within ten minutes. He stated having waited long but Aslam did not return, thus; they went to the house of Siddique, where womenfolk and children were gathered and there was hue and cry. It was further stated that he saw that accused Ghulam Rasool, Majeed and Muhammad Siddique had caught hold of Muhammad Aslam, while Alam was giving axe blows on his head; further stated that they had also seen one lady lying dead. He stated that thereafter he informed Shareef that in the house of Alam, three persons were beating Aslam, and then; he returned back to Sibi.
24. In cross-examination, he stated that deceased Muhammad Aslam was his relative. It was stated that deceased was not employee of WAPDA. He stated that he and Habibullah together had gone to Dhadar. He stated that in connection of some work, he had gone to Aslam. It was stated that Aslam was only doing business, of dairy/milk. He stated that at 10:00/10:15. a.m. He went to Aslam.
25. He further stated that son of complainant was sitting with them in dairy farm; voluntarily stated that he was sitting out side the dairy farm. It was stated that the place of incident was situated at a distance of 100 yards from dairy farm. He showed his ignorance that deceased Mst. Marvi was wife of Muhammad Siddique. It was admitted that the place of incident was covered with boundary wall having gate; many people were gathered at the place of incident. He stated that he is not relatives of accused persons, nor he had visiting terms with them. He showed his ignorance that on account of Siah Kari, Muhammad Siddique had killed his wife and Muhammad Aslam. He showed his ignorance that on account of absconsion of accused Muhammad Siddique, present appellant was involved in the case. He stated that after two/three months of the incident, his statement was recorded by Police. It was stated that soon after the incident, he alongwith Habibullah left Dhadar for Sibi. He denied that neither he had gone to Dhadar nor he had seen the incident. He denied that he was not eye-witness of the incident, as such; after two/three months of the incident he was named as witness. He stated that he is permanently residing in Sibi. He denied that being relative of complainant, he has made false statement.
26. PW-8 Abdul Qadir Constable appeared and deposed that on 10th March, 2001, he was posted in Police Station, Dhadar. On the report of complainant of the case, FIR was registered and thereafter; DSP and SHO alongwith other Police officials proceeded to the place of incident, where SHO inspected the site and one dead-body of a lady was found on the spot. He further deposed that blood stained earth was taken into possession and the dead-bodies of lady and man were shifted to hospital for the purposes of postmortem. He has also deposed that one axe, ring of lady, one pair of sandles, one pair of ear-rings and blood stained clothes of injured Muhammad Aslam were taken into possession. He had produced site inspection memo (Ex: P/8-A) , recovery memo of blood stained earth of deceased lady (Ex: P/8-B), whereby; blood stained earth of lady (Article-P/2) alongwith sample of seal (Article-P/3) were sealed in parcel (Article-1). He had also produced recovery memo (Ex: P/8-C) through which blood stained earth of injured Muhammad Aslam (Article-P/5) alongwith sample of seal (Article-P/6) were sealed in parcel (Article-P/4); recovery memo of crime weapon i.e. axe (Ex: P/8-D) alongwith sealed parcel (Article-P/7) containing axe (Article-P/8) and sample of seal (Article-P/9) were produced; recovery memo (Ex: P/8-E) alongwith sealed parcel (Article-P/10) containing two pair of sandles (Article-P/11) were produced.
27. This witness further produced recovery memo (Ex: P/8-F) whereby blood stained clothes of lady (Article-P/13) alongwith sample of seal (Article-P/14) were recovered and sealed in parcel (Article- P/12), as well as, recovery memo (Ex: P/8-G) whereby jewels (Article-P/16) and sample of seal (Article-P/17) were taken into possession and were sealed in parcel (Article-P/15); blood stained clothes of Muhammad Aslam (Article-P/19) alongwith sample of seal (Article-P/20) were taken into possession vide recovery memo (Ex: P/8-H) and sealed parcel (Article-P/18) was prepared. He had identified his signatures on the produced exhibits, as well as, the articles so produced by him.
28. In cross-examination, he stated that about 01:00 p.m. they proceeded to the place of incident and reached there at 02:00 p.m. On their arrival at the place of incident, they shifted the dead-bodies to hospital where only postmortem of lady was made, and thereafter they again visited the place of incident. He has stated that blood stained clothes of lady were taken into possession in hospital and on bringing her dead-body back to her house, her ornaments were taken into possession by the Police, however; he did not remember that who had produced said ornaments to Police. He admitted that he had not made any identification mark on the recovered articles. He denied that the recovered axe was not stained with blood. It was admitted that edge of axe was sharp and the same did not bear blood stains. It was stated that the parcels were prepared on the spot. He has denied that he has made false statement and further denied that the produced articles were produced by complainant of the case in Police Station.
29. PW-9 Doctor Amin Mengal is the head of Medico legal department and Police Surgeon, Sandeman Provincial Hospital, Quetta, who stated that on 10th March, 2001, injured Muhammad Aslam was referred by Medical Officer Dhadar to Sandeman Provincial Hospital, Quetta for medical treatment, injured was attended by Doctor Zulfiqar Khoso, who after examination, opined in the following terms:- "Injuries:
1. An already dressed and stitched wound was present on the skull.
2. An already stitched wound present on the chest.
3. The patent was unconscious, pale and jerking. X-Rays Skull. Multiple fracture of posterior cranium vault.
30. It was stated that initially injured was examined and provided medical aid by Medical Officer, Dhadar. It was further stated that injured was admitted in neuro surgery ward, where he expired on 17th March, 2001; in this regard MLC (Ex: P/9-A) was accordingly issued bearing his signatures.
31. In cross-examination, he denied the suggestion that he had not examined the injured. He admitted that he had not produced the relevant record. It was admitted that according to medical certificate issued by Medical Officer Dhadar, injuries caused to injured were of hammer and knife.
32. He denied that injured Muhammad Aslam was not brought to casualty department, Quetta for medical treatment.
33. PW-10 Doctor Zulfiqar Khoso, Medical Officer, appeared and deposed that on 10th March, 2001, he was posted as Medical Officer, Sandeman Provincial Hospital, Quetta. He had examined injured deceased Muhammad Aslam, who was referred by Medical Officer Dhadar on 10th March, 2001 at 05:15 p.m. After conducting medical examination, he had issued medical certificate (Ex: P/9-A).
34. PW-11 Zameer Hussain, Sub-Inspector is the first Investigating Officer, who after registration of case alongwith SDPO and Tehsildar Dhadar proceeded to the place of incident, where in a room Mst.
35. Marvi and Muhammad Aslam were lying in pool of blood, who were shifted to hospital/while Mst.
36. Marvi was dead. He has further stated that from the spot, one axe, sandles of Muhammad Siddique were taken into possession. He had prepared site inspection map (Ex: P/11-A) and statements of witnesses were recorded. It was stated that Muhammad Siddique and Muhammad Alam were nominated by complainant in the FIR, while Ghulam Rasool and Abdul Majeed were named as accused after recording supplementary statement of complainant (Ex: P/11-B). It was further stated that dead-body of Mst. Marvi was handed over to her relatives, while deceased Muhammad Aslam was injured, who was referred to Quetta. He had also taken into possession blood stained clothes of deceased Marvi and on 29th March, 2001, investigation of the case was handed over to Munir Ahmed, Sub-Inspector. This witness was thoroughly cross-examined, but nothing favourable to appellant was extracted from his statement.
37. PW-12 Munir Ahmed Gondal, Sub-Inspector is the second Investigating Officer; he deposed that on 01st April, 2001, he was posted as SHO, Police Station Dhadar and investigation of the case was handed over to him. He stated that on 12th April, 2001, medical certificate of deceased Mst. Marvi was obtained from civil hospital, Dhadar and on 15th May, 2001, present appellant was arrested and after completion of investigation, on 25th May, 2001, appellant was remanded to judicial lock-up and incomplete challan (Ex: P/12-A) was submitted in the Court.
38. In cross-examination, he denied the suggestion that during course of investigation, appellant disclosed that at the time of incident, he was present on his duty. He showed his ignorance that on the basis of relationship with accused Muhammad Siddique, appellant was involved in the present case.
39. PW-13 Inspector Naseebullah Khosa (third Investigating Officer) appeared and deposed that on 03rd June, 2001, he was posted as SHO, Police Station Dhadar. He received challan from District Attorney for recording statements of eye-witnesses, as such; statements of Habibullah and Dad Muhammad were recorded under Section 161, Cr.P.0 and thereafter supplementary challan "(Ex: P/13-A) was produced in the Court. On 06th August, 2001 co-accused Abdul Majeed was arrested and after investigation supplementary challan (Ex: P/13-B) was prepared. It was stated that on 8th August, 2001 FSL report was received. It was further stated that on 17th December, 2002 accused Muhammad Alam was arrested and on completion of investigation to his extent, challan (Ex: P/13- C) was prepared and produced in the Court.
40. In cross-examination, he admitted that in the FIR, Dad Muhammad and Habibullah (eye- witnesses) were not mentioned by the complainant. He further admitted that statements of eye- witnesses were recorded after three months of the incident.
41. PW-14 Zameer Hussain ASI appeared as fourth Investigating Officer. He stated that inquest report of Mst. Marvi (Ex: P/14) was prepared by him and thereafter her dead-body was handed over to her relatives vide receipt (Ex: P/14-A). He has stated that complainant of the case had submitted an application (Ex: P/14-B), whereby two persons were nominated as accused. He had also prepared inquest report of deceased Muhammad Aslam and produced the same as Ex: P/14-C and Thereafter his dead-body was handed over to his relatives vide receipt (Ex: P/14-D). He had produced murasila (Ex: P/14-E and P/14-F) sent to Medical Officer Dhadar for medical examination of deceased Marvi and Muhammad Aslam. He further stated that external medical examination of Mst. Marvi was conducted in presence of Magistrate report whereof was produced as Ex: P/14-G.
42. In cross-examination, he stated that inquest report of deceased Mst. Marvi was prepared after conducting her post-mortem, while inquest report of deceased Muhammad Aslam was prepared on 10th March, 2001 because he was referred to Quetta for further medical treatment, where he died. It was admitted that internal examination of deceased Mst. Marvi was conducted by staff Nurse Khalida Parveen. He had called Tehsildar, who remained present with him from the place of incident till hospital, while he had not recorded statement of Tehsildar. He has denied the suggestions made in favour of appellant and supported the case of prosecution.
43. On close of prosecution side, statement of appellant under Section 342, Cr.P.C., was recorded, wherein he has pleaded his innocence. He opted to make statement on oath under Section-340(2), Cr.P.C., wherein; he has deposed that on 10th March, 2001, he was present in his, office i.e. Civil Secretariat Quetta. It was stated that at about 08:30/09:00 a.m. he alongwith one Sarwar were taking tea in office canteen. He further stated that Sarwar had to meet somebody in the Secretariat, whom they were searching but he was not found, however; both of them remained together till 10:00 a.m. He further deposed that after two months he was in his way to his office, when reached at Sariab Phattak, he was arrested by Police and he was falsely involved in the present case.
44. In cross-examination, he stated that he was working in Secretariat for the last twelve/thirteen years. He stated that prior to 10th March; said Sarwar had not met him in his office, who was not his relative, while he knows him. It was stated that Sarwar was asking him about one driver. He stated that he has no knowledge about murder of Mst. Marvi and deceased Muhammad Aslam. He denied that after committing their murder, he had escaped from the scene; voluntarily stated that he was present on his duty. He further denied that he had not met with said Sarwar and his has fabricated a false story to save himself. In support of his plea, he has produced said Ghulam Sarwar son of Abdul Aziz as DW-1, who has appeared in witness-box and deposed that on 10th March, 2001, at 08:00 a.m. he went to Secretariat to see his friend, who was not present there; he was waiting for him, in the meantime; Ghulam Rasool came on bicycle to whom he asked about his friend, who told him to go in side the office. He has stated that both. of them were searching said person but he was not found, thereafter they waited for him in the canteen; witness remained waiting till 10:00 a.m then appellant came and asked about his friend and thereafter; witness left Secretariat.
45. In cross-examination, he stated that he is employed in Balochistan Provincial Assembly. He stated that he went to Secretariat in Block No.2 to meet one Abdul Qadir (driver). He stated that on production of his service card, he was allowed to enter in Secretariat without issuing any gate pass to him. He stated that appellant met him at cycle stand situated near the canteen. He stated that the person whom he wanted to meet was known to appellant, however; prior to that he had not met with appellant. He denied that he is maternal cousin of appellant. He denied that on 10th- March, 2001 he had not met with appellant Ghulam Rasool. He has denied that he has made false statement.
46. After conclusion of trial, the learned Additional Sessions Judge-I, Sibi, vide judgment dated 18th December, 2006, convicted and sentenced the appellant, in the aforementioned manner. Being aggrieved of his conviction and sentence, the appellant has preferred the instant appeal. While Murder reference (S)20 of 2006 has been sent for confirmation of death sentence awarded to the appellant.
47. Messrs Mujeeb Ahmed Hashmi and Noorullah Kakar, learned counsel appeared for appellant, while Mr. Abdul Raheem Mengal, learned Assistant Advocate General appeared on behalf of the State.
48. It has been contended on behalf of appellant that there is no evidence relating to murder of Mst.
49. Marvi, and thus; the conviction and sentence awarded by the trial Court is bad in law. It was further contended that the appellant was roped in the case through supplementary statement having been recorded after a period of seventeen days i.e. on 27th March, 2001 was based on malice. It was also contended that on appraisal of evidence/ there is material contradictions in the, statements of so called eye-witnesses having been introduced through supplementary statement, whose statements were recorded after lapse of three months, and thus; evidence produced by prosecution has not been examined in its true perspective.
50. On the other-hand, learned Assistant Advocate General has supported the judgment contending that there was ocular evidence supported by medical evidence, was sufficient for conviction of the appellant, however; had failed to mention or point out any evidence relating to death of Mst. Marvl.
51. We have considered the arguments advanced by learned counsel for the parties and perused the record. Before going to the merits of the case relating to deceased Muhammad Aslam, it would be profitable to reproduce herein-below the observations recorded by the trial Court relating to the death of Mst. Marvi: "There is no direct ocular account about the murder of Mst. Marvi and all the evidence regarding to the murder of Mit. Marvi are circumstantial and indirect, so extreme penalty of death can not be imposed on account of murder of Mst. Marvi, so the accused is convicted for imprisonment of life as Tazir and Rs. 1,00,000/- (one lac) as compensation to the legal heirs of Mst Marvi, in default both have to undergo two years SI."
52. So far as, death of Mst. Marvi having been caused, there is no direct evidence to implicate the appellant in committing murder of Mst. Marvi. The learned trial Court, however; relied on circumstantial and indirect evidence, while convicting the appellant for imprisonment of life. It is to note that even there is no circumstantial evidence on record to connect' the appellant with the commission of murder of Mst. Marvi except that the dead-body of Mst. Marvi was taken to hospital where her vaginal swa bs were taken by PW-3 Khalid Parveen Staff/Nurse. It was further stated by the complainant that the blood was lying in clot when he reached on the place of incident. The report of swa bs were not found to be contaminated with semen of deceased Aslam. PW-4 has however, opined about injuries sustained by deceased. Learned Assistant Advocate General had conceded that there is no evidence on record to connect the accused with commission of murder of Mst. Marvi. We have also gone through the entire record, which does not connect either directly or indirectly the appellant before us in committing the said murder.
53. Now reverting to the death of Muhammad Aslam, there are statements of two eye-witnesses i.e. PW-2 Habibullah and PW-7 Dad Muhammad. The supplementary statement is stated to had been given on 27th March, 2001, wherein the appellant was introduced as one of the person, who caught hold of Muhammad Aslam, while blows of axe were caused by absconding accused Muhammad Siddique. In the said statement, PW-2 and PW-7 have been introduced as eye-witnesses PW-1 is the complainant, who, had received information at his home having registered FIR on the basis of information by PW-6 Muhammad Shareef. Statement of PW-2 Habibullah shows that he is resident of Ghareeb Abad, Sibi having stated that about three months back, he had come to the dairy farm, while Muhammad Aslam was called by accused Muhammad Siddique in order to repair the electricity; Muhammad Aslam accompanied Muhammad Siddiqua and did not return. Similar statement was also made by PW-7 Dad Muhammad, who is also resident of Ghareeb Abad, Sibi. It is to note that PW-6 Muhammad Shareef, who having stated that he had seen. Dad Muhammad and Habibullah, however; having stated that Alam and Muhammad Siddique after committing the murder were going on motorcycle confessed of having committed the offence. In the cross- examination, the said witness introduced PW-2 and PW-7, which fact was confronted to the witness with previous statement recorded under Section 161, Cr.P.0 was found to be not available and had improvised his statement. The Hon'ble Supreme Court in the case of Khalid Javed & another v. the State (2003 SCM R 1419) has held that the supplementary statements are always recorded with mala fide intention in order to introduce wrong version and roping innocent people. Relevant observations of the full bench of Hon'ble Apex Court at page No. 1432 are reproduced herein-below: "Admittedly the plea of the appellants of innocence coincides with the version of the prosecution contained in F.I.R. Exh.P.O. Therefore, it would be appropriate to note that F.I.R. under Section 154, Cr.P.C. is normally considered as a corner stone of the prosecution case unless it is shown that on account of some mala fide intention, a wrong version of the complainant was recorded by the investigating agency with a view to allow the real culprits to go escort free and to involve innocent person in the commission of the offence or complainant in order to misguide the investigation lodged false report i.e. F.I.R. or supplementary statement with ulterior motive. To substantiate this argument, reference may be made to the case of Muhammad Rafique Kamboh and another v. The State (1993 P.Cr.L.J 1403)."
54. Now, the second piece of evidence available on record is recovery of axe made from the spot, while the said axe produced was not stained with blood however; the statements of PW-9 and PW- 10 show that the injuries were caused with hammer and knife. The statements of said witnesses when examined with medical evidence shows that there is direct contradiction in use of weapon of offence for which, no explanation has come forward. There is direct contradiction in the medical evidence and the so called ocular account furnished by PW-2 and PW-7, and thus; the evidence of the said eye-witnesses cannot be relied upon being not trustworthy and credible. We are supported by the view as given by their lordships in the Apex Court in the case of Shah Bakhsh & another v. The State & 2 others (1990 SCM R 158); relevant observations are reproduced herein- below:-- "11....This conduct of those closely concerned with the deceased and the contradiction in the medical evidence which has been taken note of by both the Courts makes the presence of these witnesses extremely doubtful.
12. The ocular evidence with regard to the actual occurrence is also contradicted by the medical evidence. Dr. Muhammad Saeed (P.W-1) reported the following injuries on the dead body of the deceased Ghulam Muhammad:-- Thus, the statements of PW-2 and PW-7 being eye-witnesses cannot be relied upon as they have been introduced subsequently having introduced story for the first time, which was not available in FIR or thereafter till 27th March, when supplementary statement was recorded.
55. The other limb of the argument of appellant is that there is delay of three months in recording the statements of eye-witnesses, which has not been satisfactorily explained. PW-13 Naseebullah Khosa (Investigating Officer) has admitted, that the statements of eye-witnesses were recorded after return of the challan from the District Attorney for recording their statements under Section 161, Cr.P.C. No plausible or justifiable explanation has been offered for recording the statements with such along delay. A Division Bench of this Court in the case of Haji Nadir Khan etc. v. The State (NLR 2004 Criminal 213 [Quetta]) has observed in the following terms: "... ... ...The source of information, not disclosed by the complainant, the eye-witness named in the report, not examined and the statements of PWs-4 and 5 recorded after five days of the incident, without offering any explanation; such peculiar circumstances, renders the entire prosecution case doubtful and unreliable. It is settled that, statements under Section 161, Cr.P.C. recorded with delay, without giving any plausible explanation are to be ruled out of consideration. In this regard, reliance is placed on 1998 SCM R 570 (Muhammad Khan. v. Moula Bakhsh and another)."
56. For the reasons stated above, we are of the opinion that the prosecution has failed to establish the guilt beyond shadow of doubt relating to murder of Mst. Marvi, as well as, Muhammad Aslam against the appellant, and thus; extending benefit of doubt, the impugned order is directed to be set aside and the appellant is acquitted of the charge. He is set at liberty forthwith, if not required in any other case.
57. Consequently, Murder Reference (S) 20 of 2006 is answered in negative.