1. ' AMANULLAH KHAN YASINZAI, C J.---The appellant Haji Arif son of Mullah Umar, Ameer Hamza, Muhammad Raza sons of Muhammad Arif (hereinafter referred to as the appellants) were tried along with absconding convicts Muhammad Hanif, Inayatullah sons of Haji Arif, Obaidullah and Kaleemullah sons of Muhammad Rafiq (hereinafter referred to as the absconding convicts) under section 302, 324, 34, P.P.C. By the Special Judge, Anit-Terrorism Court-II, Quetta. The appellants have been convicted under section 6(2)(a) of Anti-Terrorism Act, 1997 read with section 302(b)/34, P.P.C. And sentenced to life imprisonment each and to pay a fine of Rs,2,50,000 each or in default thereof, to further undergo S.I. For one year each if, fine amount is recovered; Rs,1,00,000 shall bp given to the legal heirs of the deceased persons, further Rs,50,000 to the injured victim. Further they have been convicted under section 6(2)(b) of Anti-Terrorism Act, 1997 read with section 324, 34, P.P.C. And sentenced to suffer R.I. For 10 years each and their sentences were ordered to run concurrently, the benefit of section 382-B, Cr.P.C. Was also extended in favour of the appellants.
2. While the absconding convicts have been convicted under section 6(2)(a) of the Anti-Terrorism Act, 1997 read with section 302(a), P.P.C. And awarded to death sentence, further they were convicted under section 6(2)(b) Anti-Terrorism Act, 1997 read with section 324, 34, P.P.C. And sentenced to 10 years each vide impugned judgment dated 15-11-2005.
3. ' Being aggrieved from their conviction, the appellants have filed the instant appeal and the learned Special Judge, ATC-II, Quetta has also made a Reference for confirmation of death sentences awarded to the absconding convicts. Thus by this common judgment, we propose to dispose of both the Appeal and Murder Reference.
4. ' Briefly stated the facts of the case are that complainant Qurban Ali alias Bacha lodge written report Exh.P/1-A with Levies Thana Killa Abdullah, averring therein that on the day of incident i,e, 2- 11-2003, he along with his three brothers namely Abdul Bari, Naimatullah and Hameedullah left for their home on foot from Mazai Adda and when they reached near the house of Pehalwan Abdul Zahir, the appellants along with absconding convicts had gathered and attacked upon Abdul Bari, Naimatullah and Hameedullah, the accused persons Muhammad Hanif, Inayatullah and Obaidullah who were armed with dandas attacked upon them and thereafter, started firing with Klashnikovs due to which Naimatullah died at the spot while Hameedullah succumbed to the injures on his way to Bolan Medical Complex Quetta whereas, Abdul Bari received serious bullet injuries. It was further stated that he was following his brothers, who were ahead of him. It was further stated that he informed the Tehsildar on telephone about the incident and took his deceased brother Naimatullhah for post mortem as well as injured Hameedullah (deceased) and Abdul Bari (injured) for medical treatment to Bolan Medical Complex Quetta.
5. ' On receiving the report, P.W.7 Ahmed Nawaz, Tehsildar, Killa Abdullah lodged F.I.R. Exh.P/7-A and thereafter, he went to the place of incident and prepared site plan Exh.P/7-B, secured 9 empties of Kalashnikov from the place of incident which were taken into possession vide memo. Exh.P/3-A and thereafter, he took blood stained clothes of deceased Naimatullah into possession vide memo.
6. Exh.P/3-B, blood stained clothes of deceased Hameedullah into possession vide memo. Exh.P/3-C and the clothes of injured Abdul Bari were taken into possession vide memo. Exh.P/4-A thereafter, received medical certificate Exh.P/5-A of deceased Hameedullah from Bolan Medical Complex Quetta and that of injured Abdul Bari Exh.P/7-C. Thereafter, he recorded the statements of witnesses and on his transfer, investigation of the case was carried out by P.W.9 Ghulam Muhammad Tareen, Tehsildar. He arrested the appellants and also initiated proceedings under section 88, Cr.P.C. Against the absconding convicts for their arrest and then submitted incomplete challan Exh.P/9-A subsequently, submitted complete challan Exh.P/9-B. The charge - was framed against the appellants and .The absconding convicts who were declared proclaimed offenders under section 7(a)(b) and (c) of the Anti-Terrorism Act read with sections 302, 147, 148, 149, 34, P.P.C.
7. The charge was refuted by the appellants. Thus to prove its case, the prosecution produced the following witnesses:-- ' P. W.1. Qurban Ali is complainant of the case. He has reiterated the contents of written report Exh.P/1-A: ' P.W.2 Abdul Bari, he gave ocular account of the incident stating therein, that he along with his two brothers namely Naimatullah and Hameedullah left from Mazai Adda towards his house and on the way firing was made upon them, He further stated that the appellants along with absconding convicts had gathered near the house of Pehalwan Abdul Zahir and attacked upon them. The absconding convicts Muhammad Hanif, Inayatullah, Obaidullah were armed with Klashnikovs who fired at them and appellant Amir Hamza was armed with Knife and appellants Muhammad Arif and Muhammad Raza were armed with dandas.
8. ' P.W.3 Nasaruddin, he is marginal witness to the recovery memo. Exh.P./3-A whereby, 9 empties of Klashnikov were recovered from the place of incident and memos. Exh.P/3-B and Exh.P/3-C whereby, blood stained clothes of the deceased persons were taken into possession.
9. ' P.W.4. Saifullah, in his presence blood stained clothes of injured Abdul Bari were taken into possession vide Memo. Exh.P/4-A.
10. ' P.W.5 Dr. Ghulam Sarwar, he examined deceased Hameedullah and issued Medical Certificate Exh.P/5-A and noted the following injuries on his person:-- "(1) Circular wound of Bullet entrance 2 x 2 cm inverted margins on left lateral aspect chest at 10th inter costal space.
11. (2). No exit were observed R.M. No,1 developed.
(3) X-Ray No chest and abdomen shows multiple pieces of M. Density foreign Body."
12. ' P.W.6. Dr. Abdul. Hadi, he externally examined the deceased Naimatullah and issued Medical Certificate Exh.P/6-A and found the following injuries on his person:-- "(1) There was a wound of about 2 inches but too close below left eye which was 2 inches deep and another wound was found over the occipital which was 2 cm in length and 3 cm in depth. Both wounds were oozing.
(2) There was also another wound of about 1-1/2 cm in length over the left arm and other was found below the left knee joint of about 1-1/2 cm in size both were oozing.
13. ' The patient was dead at the time of examination."
14. ' P.W.6 Ahmed Nawaz, Tehsildar, he is Investigating Officer of the case who initially started investigation of the case as mentioned hereinabove.
15. ' P.W.B. Dr. Muhammad Noor, he has examined injured Abdul Bari and issued Medical Certificate Exh.P/7-C.
16. ' P.W.9. Ghulam Muhammad Tareen, Tehsildar/I.O. Of the case, he arrested the appellants and on completion of investigation, submitted challan before the learned Special Judge, ATC-II, Quetta.
17. ' The appellants were examined under section 342, Cr.P.C., however, they did not record their statements on oath as envisaged under section 340(2), Cr.P.C. Nor produced any evidence in their defence. On conclusion of the trial, the learned Special Judge ATC-II, Quetta convicted the appellants and absconding convicts vide impugned judgment dated 15-11-2005 as mentioned hereinabove.
18. ' Publication was made for the absconding convicts but despite publication none appeared on their behalf. Thus, Mr.Nasrullah Khan Tareen, Advocate was appointed as counsel for the absconding convicts at State expense.
19. ' We have heard Mr. Jamal Khan Mandokhel, Advocate for the appellants. Mr. Naeem Akhtar Afghan, Advocate for the complainant, Qazi Bashir Ahmed, Additional Public Prosecutor ATA for the State and Mr. Nasrullah Khan Tareen, Advocate for the absconding convicts.
20. ' Mr. Jamal Khan Mandokhel, learned counsel for the appellants raised the following points:--
(i) That the ocular evidence qua the appellants is not supported by medical evidence, as no injuries inflicted with blunt or sharp weapon were found on the persons of the deceased and injured.
(ii) Since there is a long existing previous enmity between both the parties, thus the complainant had a motive to falsely implicate the appellants, thus, evidence regarding the appellants may not be considered to the extent of the appellants without corroboration.
(iii) The incident took place on a thoroughfare and many people were present at the place of incident but no independent witness was produced which further casts doubt on the prosecution case.
(iv) The F.I.R. Was lodged after a delay of five hours after due deliberation."
21. ' Mr. Naeem Akhtar, learned counsel for the complainant and Qazi Bashir Ahmed, learned Addl.
22. Public Prosecutor, ATA vehemently opposed the appeal and supported the Murder Reference made by Special Judge ATC-II, Quetta.
23. ' \Mr. Naeem Akhtar, learned counsel for the complainant contended that the appellants along with the absconding convicts in furtherance of their common intention came to the place of,incident and committed the offence. Learned counsel further stated that even no overt act was attributed to the appellants but they have been rightly convicted as provisions of section 34, P.P.C.
24. Are applicable.
25. ' Mr. Nasrullah Khan Tamen, learned counsel for the absconding convicts adopted the arguments of Mr. Jamal Khan Mandokhel, learned counsel for the appellants.
26. ' With the assistance of the learned counsel for the, parties, we have perused the record minutely.
27. ' The prosecution case entirely depends upon the statements of P.W.1 complainant Qurban -Ali and P .W . 2 injured Abdul Bari.
28. ' Adverting to the contention of Mr. Jamal Khan Mandokhel, learned counsel for the appellants who strenuously argued that both the witnesses have not come with true facts of the case as their statements regarding use of dandas by the appellants is not supported by the medical evidence.
29. The contention of learned counsel has substance. Both the witnesses stated that the appellants attacked them with dandas and thereafter the absconding convicts started firing. The statement of both the P.Ws to the extent of dandas is not supported by the medical evidence. None of the deceased and injured had received any injury with blunt or sharp weapon. Besides, both the witnesses have not given details A of injuries caused with blunt or sharp weapon and have not attributed any specific role or injury to any of the appellants. Vague and general allegations have been alleged against the appellants. Besides, both the witnesses have contradicted each other, P.W.1 Qurban Ali stated that all the -appellants were armed with dandas while P.W.2 Abdul Bari stated that appellants Amir Hamza was armed with a Knife. Thus in view of the above discussion, the statements of both the P.Ws is negated by medical evidence to the extent of appellants.
30. ' Reverting to the next contention of Mr. Jamal Khan Mandokhel, learned counsel for the appellants regarding delay in lodging the F.I.R. It may be observed that admittedly, F.I.R. Was lodged after a delay of 4/5 hours and the complainant Qurban Ali in his statement stated that after the incident, deceased Nainiatullah and injured Abdul Bari were taken to the Hospital to Quetta and after returning from Quetta, F.I.R. Was lodged. He stated that he informed the Tehsildar regarding the incident. Since the Levies Thana was situated at a very short distance but there was nothing to prevent the complainant from registering the case in time. F.I.R. Was lodged when he returned from Quetta. The complainant had ample time to meet with his other relatives, hence, possibility cannot be ruled out that the F.I.R. Was lodged after due deliberations which create doubt on the prosecution case.
31. ' Coming to the next contention of learned counsel for the appellants that a deep rooted enmity existed between the parties, thus the complainant had a motive to falsely implicate the appellants in the case C by spreading the net wider by involving all the male members of the appellants' side: It has come on record that the complainant party had previous enmity with the appellant sand further the appellants and complainant were' living adjacent to each other and after differences arose, the appellants shifted to another house. It has been consistently held in such like situation keeping in view the principles of safe administration of criminal justice that it is not safe to rely on the statement of such witnesses without any strong circumstantial evidence or without corroboration in cases of capital punishment. The court to look for independent corroboration- Mr. Jamal Khan Mandokhel, learned counsel for the appellants further stated that admittedly the place where incident took place was a thoroughfare and the said lane led to 3/4 Villages. It has been mentioned D in the F.I.R. That soon after the incident, .Many people gathered over there but no independent witness was examined in the instant case. No reasons have been given for not producing independent witness.
32. ' Reverting to the arguments of learned counsel for the appellants regarding attraction of section 34, P.P.C., it may be mentioned here that the element. Of common intention can be judged from the manner in which the incident took place though, both the witnesses have stated that the appellants who were present at the place of incident had attacked upon them with dandas. P.W.1 complainant Qurban Ali has stated that all the appellants were armed with dandas and suddenly attacked upon them when they reached near the house of Pehalwan Abdul Z'ahir whereas, P.W.2 who was also injured in the said incident stated that appellant Ameer Hamza was armed with knife and absconding convicts Muhammad Hanif, Inayatullah, Obaidullah Were armed with dandas.
33. Admittedly, no injury was noted in the medical certificate of injured Abdul Bari and deceased persons to have been caused due to sharp or blunt weapon Thus, provisions of section 34, P.P.C.
34. Could have been attracted if, the appellants had taken active part in the incident. In this regard reference is made on the following case laws:--
(i) 2003 PCr.LJ 1548 (Muhammad Mumtaz v. The State).
(ii) PLD 1996 SC 122 (Muhammad Arshad and 2 others v. The State
(iii) 1999 M LD 506 (Mushtaq Ali and 2 others v. The State).
35. ' In case of Muhammad Arshad and 2 others v. The State PLD 1996 SC 122,the Hon'ble Supreme Court of Pakistan has held as follows:-- "The essence of liability envisaged under this section lies in the existence of a common intention and to attract the application of this provision, it has to b& shown that the criminal act complained of was done by one of the accused in furtherance of common intention of all. Now the intention is a state of mind which is not susceptible of direct proof and can only be inferred from the attendant circumstances of the crime. A priori, the existence of common intention which usually consists of motive, pre-concert and pre-arrangement cannot always be proved by direct evidence. In some cases, direct evidence such as confessions or testimony of approver may be available to prove the common intention but in most of the cases, it has to be gathered from the facts disclosed in evidence and surrounding circumstances of the case. Refer Khushi Muhammad and others v. The Crown 1969 SCM R 599 Wherein the contention that in the absence of any direct or circumstantial evidence to show previous concert or arrangement between the accused-appellants, inference of a common intention was not justified, was repelled and it was observed, "intention is a mental condition and has often to be gathered from the facts and the surrounding circumstances. One cannot always expect direct evidence to be forthcoming on 'a matter of this nature". Similar view was expressed by the Federal Court in an earlier case `Bahar v. Crown' reported in PLD 1954 FS 77."
36. ' In the case of Mushtaq Ali and 2 others versus the State 1999 M LD 506, the Sindh High Court Karachi while interpreting section 34, P.P.C. Has observed as follows:-- "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 comprehensibly 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".
37. 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."
38. Judging the case of appellants on the touchstone principles and in view of the aforesaid discussion, it may be noted that P.W.1 and P.W.2 have contradicted each other to the extent of role attributed to appellant Ameer Hamza as discussed hereinabove, the statements of both the P.Ws are belied by medical evidence as neither the deceased persons nor injured had received any injury inflicted with incised or blunt weapon. Further, it has come-on record that both the P.Ws were inimical towards the appellants due to old enmity, thus their evidence could not be relied upon qua the appellants only without any strong corroborative evidence. Further, after examining the case minutely in our considered opinion, presence of the appellants at the place of incident is highly doubtful. The case as wet up by the prosecution is highly improbable and does not appeal to a prudent mind, the appellants would not choose the place of incident to attack the complainant party which is a 'general thoroughfare and the way leads 3/4 Villages in a populated area and besides, the doctor in his statement stated that firing was made from a distance thus, it was not possible for the assailants to have fired from a distance where, the appellants were very close to deceased and injured persons. Thus, in our considered opinion, the eye-witness account. Is unreasonable and improbable qua the case of the appellants. Thus, after examining the entire case minutely, it can be safely held that due to previous enmity false implication of the appellants cannot be ruled out. The net has been spread wider by the P.Ws. To implicate the appellants in the commission of offence. The suggestion put to the Investigating Officer by the defence counsel was not denied that one of the absconding convicts had received bullets injuries while he was in a car.
39. There were broken pieces of glass at the place of incident which were not secured. It appears that the P.Ws have suppressed material facts regarding the appellants.
40. ' Thus in view of the above discussion, it is held that participation of the appellants Haji Arif son of Mulla Umar, Ameer Hamza and Muhammad Raza sons of Muhammad Arif in the commission of the offence becomes very doubtful. The prosecution has failed to prove the case against them. Thus, by giving them benefit of doubt, they are acquitted of the charge. They be released forthwith if not required in any other case, thus conviction awarded to the appellants vide impugned judgment dated 15-11-2005 by the learned Special Judge ATC-II, Quetta is set aside to the extent of aforesaid appellants only. However, as far as the case of absconding convicts Muhammad Hanif, Inayatullah sons of Haji Arif, Obaidullah and Kaleemullah sons of Muhammad Rafique is concerned, the prosecution has proved its case beyond any shadow of doubt against them thus, the judgment dated 15-11-2005 passed by the Special Judge ATC-II, Quetta is upheld and the Murder Reference No,19 of 2005 to their extent made by the Special Judge, ATC-II, Quetta is answered in affirmative.
41. ' Criminal Appeal No,333 of.2005 and Murder Reference No,19 of 2005 stand disposed of in the above terms.