This Criminal Appeal was heard by the Hon'ble Members of Division Bench comprising of Mr. Justice Ahmed Khan Lashari and Mr. Justice Mehta Kailash Nath Kohli.
2. The draft of the proposed judgment written by Mr. Justice Mehta Kailash Nath Kohli maintaining conviction of the appellants awarded by Anti-Terrorism Court, Khuzdar vide judgment dated 29.10.2005 was gone through by the Hon'ble Senior Member Mr. Justice Ahmed Khan Lashari, who found himself unable to agree with the conclusion as contained in the draft judgment, as such; by a separate judgment, he acquitted the appellants of the charge. Consequently; I having seized with the matter as Referee Judge issued notices to the learned counsel for the parties for hearing.
3. I have heard the learned counsel for the appellants as well as learned Special Prosecutor.
Learned Counsel for the appellants while supporting the judgment authored by his Lordship Mr. Justice Ahmed Khan Lashari vehemently contended that all the prosecution witnesses were inimical towards the appellants, as such; their evidence without any corroboration was not reliable.
He further contended that P.W. 4 deposed that at the time of firing, he was sitting in the body of truck, as such; it was not possible for him to have identified the accused persons and his statement with regard to recognizing them, was neither believable nor plausible. He next argued that all the witnesses were nominated accused in case 'FIR No 06/04, who had implicated the appellants as well as other absconding accused on account of registration of that case against them, therefore, their evidence could not from basis for conviction on a capital charge. He further contended that the appellants had taken plea of alibi which was proved through documentary evidence, as such; they were liable to be acquitted.
On the other hand, learned Special Prosecutor supported the judgment proposed by his Lordship Mr. Justice Mehta Kailash Nath Kohli and contended that there was no previous enmity between the parties nor the witnesses could be termed as interested witnesses being related to the deceased persons, as such; their evidence was sufficient to maintain conviction. He further argued that ocular evidence was corroborated by medical evidence and could not be discarded being contradictory to the site plan prepared by the Investigating Officer, because site plan has never been considered by the Courts as substantive piece of evidence. According to him, documents produced with regard to plea of alibi were rightly rejected by his Lordship Mr. Justice Mehta Kailash Nath Kohli on sound reasoning.
4. I have carefully considered the contentions put forth by the learned counsel for parties and have also gone through the judgment of the trial Court as well as proposed judgments authored by my learned brothers.
5. I feel it not necessary to marshal facts of the case as the same have already been elaborately narrated in the proposed judgments alongwith gist of evidence produced by prosecution as well as defence.
6.It may be noted that so far homicidal death of deceased Allah Bakhsh and. Muhammad are concerned, the same have not been disputed by the defence; which is even otherwise proved by the statement of P.W. 5 Dr. Saif-ur-Rehman, who confirmed that both the deceased met to death on account of bullet injuries sustained by them.
7. Coming to the question as to whether the appellants were responsible for their death or otherwise? The prosecution in order to substantiate the accusation produced five witnesses, who claimed to have seen the occurrence, out of whom P.W. 1 Manzoor Ahmed, P.W. 2 Ali Muhammad nominated all the appellants, whereas; P.W. 4 Muhammad Noor nominated appellants Moulvi Taj Muhammad, Noor Ahmed and Ghulam Haider for making firing upon the truck driven by deceased Allah Bakhsh, wherein, P.W. Manzoor Ahmed, deceased Muhammad and P.W. Ali Muhammad were also travelling. It is not disputed that bah the parties were previously known to each other, as such; so far identification by the witnesses of accused persons, who made firing upon the truck is concerned, no question of mistaken identity arises however; question arises as to whether their statements are believable in the circumstances of case or otherwise? The learned counsel for the appellants argued that their evidence was not believable on account of previous enmity between the parties, but after having gone through the statements of above mentioned witnesses, I was not persuaded to subscribe to his such contention, because except a dispute over mine lease with P.W.
1 Manzoor Ahmed, no previous enmity existed between the parties. Even the appellants have not stated in their statements recorded under Section 342 Cr.P.C. above any previously enmity.
Appellant Muhammad. Amin, when asked about reasons of his implication by the witnesses answered that all the witnesses were relatives of deceased, as such; they deposed falsely, whereas; Appellant Moulvi Taj Muhammad stated that he had been falsely implicated in the case as the witnesses were nominated in FIR No. 06/2004. Appellant Ghulam Haider in his statement under Section 342 Cr,P.C. stated that they deposed falsely without alleging any previous enmity to the witnesses. Similarly appellant Manzoor Ahmed deposed in his statement under Section 342 Cr.P.C. that he was implicated in the case on account of FIR No. 06/2004 registered against the witnesses. It may be observed that mere relationship with the deceased in itself is not sufficient to term any witness as interested witness, because interested witness is one, who has motive to falsely implicate the accused in the commission of offence. In this regard, I am fortified by the judgment reported in 2000 SCM R 727, wherein, it was observed as under: "Moreover, we find that none of the two eye-witnesses could be termed as interested witness because none had any previous ill-will or grudge against the petitioner. Merely, because P.W. 4 is father of the deceased and P.W. 5 belongs to the Baradari" of the deceased, would not make them interested as they had no reason to substitute the petitioner for the real killer."
All the witnesses have no personal ,motive to falsely implicate-the appellants in place of real culprits nor any such motive has been brought on record. Similarly their evidence could not be discarded on account of registration of FIR No. 06/2004, firstly; because said FIR was lodged after four hours of registration of instant case against them; secondly that FIR was lodged by one Muhammad Sadiq, wherein; it was alleged that the witnesses have injured one Nasrullah by resorting to firing. If the witnesses have any motive to falsely implicate any person, then they would have implicated Sadiq and Nasrullah in murder of deceased in order to save their skin instead of appellants, who neither lodged report about said incident to the levies nor were mentioned as witnesses in the said FIR.
8. It is also well settled by now that straightforward and confidence inspiring evidence of an eye- witness could not be discarded merely because it is contradictory to the site-plan prepared by Investigating Officer. In the judgment reported in 1996 SCM R 906, the Hon'ble Supreme Court observed as under: "No doubt, in the site-plan it is mentioned that the distance between the deceased and the place therefrom they were fired at was 32 feet but this will not help the defence either because site-plan is not a substantive piece of evidence and cannot be used to discard the evidence of a witness unless he was confronted with the same. In the instant case the eye-witnesses were not confronted with this portion of the site-plan, and it was not asked from as to whether or not they had told this distance to the official who has prepared the site-plan."
In another judgment reported in PLJ 1980 S.C. 487, it was held as under: "The mere omission of the position of the prosecution witnesses in the site-plan cannot per se lead to an irresistible inference that the witnesses were not present, when it is found that the presence of the witnesses at the time of the incident and at the place indicated would be natural in the circumstances."
I also find no substance in the arguments of learned counsel with regard to delay of about four hours in lodging of FIR, because the place of incident is situated at a distance of about 15 kilometers as stated by P.W. 7 Hamid Ullah, Naib Tehsildar from Tehsil, Headquarter Wadh, as such; delay of four hours was normal in the circumstances of cases.
9. The learned counsel next argued that the Investigating Officer on arrival at the place of incident did not find any truck present there and only six empties were recovered from the place of incident, which also shows that the complainant party had roped more persons than actual culprits, which arguments have no force, because it has come on record through the statement of P.W. 7 Hamid Ullah, Naib Tehsidlar that dead bodies had already been shifted to the village of deceased persons.
Naturally those bodies must have been shifted in the said truck. Similarly; merely because Investigating Officer was able to seize few empties from the place of occurrence would not mean that testimony of the prosecution witnesses about firing by all the accused persons was false nor on ground their evidence could be discarded as recovery of empties or for that matter dispatch of said empties alongwith crime weapon to the fire-arm expert can only provide corroboration to the occular testimony. Likewise absence of any report of fire-arm expert or recovery of crime weapon/empties would not be fatal to the prosecution case, if the charge is otherwise established through other confidence inspiring evidence including ocular evidence. In the instant case, the prosecution produced eye-witnesses, who have fully implicated the appellants in the commission of offence and their evidence is further corroborated by medical evidence, which in itself was sufficient to maintain the conviction.
10.Now I would discuss plea of alibi taken by the appellants in their defence one by one.
Appellant Taj Muhammad and Noor Muhammad have taken the plea that on 23.12.2004 at Karachi they sustained injuries in an accident and were taken to Hospital where they remained under treatment till 24.12.2004. In order to substantive such plea interestingly they did not opt to give statement on oath, however; produced D.W. 3 Wali Ullah, D.W. 4 Sikandar Ali, D.W. 5 Noor Muhammad and D.W. 8 Dr. Ehsan Ullah, but after having gone through the evidence of said witnesses, I was not impressed by their plea of alibi as statements of the witnesses so produced suffer from various infirmities making their testimony unbelievable. D.W. 3 Wali Ullah in his statement stated that on 23.12.2004, he alongwith Taj Muhammad and Ghulam Haider came at Pakistan Chowk in order to go to Mir Atta-ur-Rehman where a motorcycle hit Taj Muhammad and Ghulam Haider, who sustained injuries and became semi unconscious. He put them in a Suzuki and brought to Civil Hospital, Karachi emergency Ward where they were treated and on the next morning i.e. 24.12.2004. Sikandar and Noor Muhammad, relatives of Taj Muhammad and Ghulam Haider came there and he handed over both the persons to them and went away.
In cross-examination, he stated that Ghulam Haider received injury on his right hand and Moulvi Taj Muhammad on left hand. He further stated that both the accused persons remained unconscious for about one hour or two hours.
11.From his statement, it appears that Ghulam Haider and Taj Muhammad remained admitted in Hospital for about one day, but surprisingly no register of Ward was produced in support of such plea except chits of outdoor patient prepared by D.W.
8. Dr. Ehsan, which chits are also doubtful in view of the fact that there is difference of more than 1000 serial number between both the chits.
The chit Mark-1 issued in favour of Moulvi Taj Muhammad bears ODP ML No. 28938, whereas; the chit Mark-2 issued to Ghulam Haider bears OPD ML..No. 30358. If both the persons were brought to the Hospital at one and same time, then serial number should have been back to back. It is also unbelievable that on the same day i.e. 23.12.2004, he would not inform relatives of the appellants Taj Muhammad and Ghulam Haider about the accident, but wait for the next day. Furthermore; according to him, Moulvi Taj Muhammad sustained injury on his left hand; whereas Ghulam Haider received injury on his right hand whose nose was also bleeding, but in OPD chits produced as Mark-1 and Mark-2 no description of injuries sustained by both the appellants' have been mentioned. It is also surprising to note that according to Mark-I X-Ray of skull of Moulvi Taj Muhammad was taken, which showed no fracture. When he had received only one injury on his left hand, then what was necessity to take X-Ray of his skull; whereas no X-Ray of skull was taken of appellant Ghulam Haider whose nose, according to D.W. Wali Ullah, was bleeding, instead according to chit Mark/2 X-Ray of his right knee was taken, which also looks not probable in view of the fact that according to the witnesses, he sustained injury on his right hand and they did not state about any injury sustained by him on his right knee. Even statement of D.W. 8 Dr. Ehsan is unbelievable, because neither he produced any OPD Register in order to substantiate that in fact Moulvi. Taj Muhammad and Ghulam Haider were brought for treatment and remained in Hospital for 24 hours. He also failed to prove that he was posted as Medical Officer in Civil Hospital, Karachi.
Furthermore; according to him, Taj Muhammad received a simple scratch on his hand; whereas Ghulam Haider complained about backache, which deposition is contradictory to medical certificates issued by him as well as to the statement of D.W. Wali Ullah. If Taj Muhammad had received only a scratch of trivial nature, then what was necessity for taking X-Ray of his skull and keeping him under observation in Neuro Ward. Mark-I also contained a note of another Dr. S.A.
Ansari showing head injury to Moulvi Taj Muhammad, whereas D.W. Wali Ullah, DW Sikandar, DW Noor Muhammad or D.W. 8 Dr. Ehsan have stated nothing about such injury. Similarly according to Mark-1 Moulvi Taj Muhammad suffered nasal bleeding, which is also contradictory to the statement of Wali Ullah. According to him, Ghulam Haider was bleeding from his nose and not Taj Muhammad. Likewise in Mark-2 Ghulam Haider has been shown suffering from vomiting and headache, which also contradicts story narrated by D.W. Wali Ullah and D.W. 8 Dr. Ehsan, because they have not stated about suffering of headache by Ghulam; Haider. According to DW-8, he was suffering from backache. D.W. 4 Sikandar Ali and Noor Muhammad, who have also deposed about plea of alibi of Moulvi Taj Muhammad and Ghulam Haider, are residents of Wadh and not hailing from Karachi,, therefore, their presence on 24.12.2004 at Karachi is doubtful and appears to be a made up story, because according to them, they were present in the house of Atta-ur-Rehman, where a telephone call was received that two men of Atta-ur-Rehman had met with an accident, who were in Civil Hospital, Karachi and under such circumstances, the best evidence was of Atta- ur-Rehman, but he was not produced to substantiate such plea.
Appellant Muhammad Amin has taken plea that on the day of incident, he was on his duty at Tehsil Wadh and in this regard, he produced D.W. 5 Dhani Bakhsh and D.W. 6 Muhammad Ishaque, who stated that on 24.12.2004 Muhammad Amin was present on his duty and his presence was duly marked in the attendance register. They also produced photocopy of attendance Register as Mark-8 and certificate as Mark-7. Firstly photocopy of Register Mark-8 is not admissible in evidence; secondly it has come on record through statement of Muhammad Ishaque that the said Register was incomplete, as no attendance of any employee including appellant Muhammad Amin was recorded in the month of November, 2004 except one Hamza Khan, which means the Register was not properly maintained. Furthermore, there was no certificate of page marking nor it bears signatures of Tehsildar or Naib Tehsildar, who were incharge of levies force, as such; on the basis of said Register and statements of D.Ws. Dhani Bukhsh and Muhammad Ishaque plea of alibi could not be said to have been substantiated beyond reasonable doubt. The Hon'ble Apex Court in the judgment reported in 2000 SCM R 1805 observed as under about plea of alibi based on attendance register not properly maintained: "The reason given and the evidence discussed by the learned trial Court appear to be sound and proper and, therefore, it could not be said that because the plea of alibi in respect of accused Muhammad Hafeez has been believed by the High Court, therefore, the testimony of P.W. Mst.
Farzana should be disbelieved in respect of appellant Muhammad Hanif as well, considering that accused Muhammad Hafeez was wrongly acquitted by the High Court on his plea of alibi. The learned Judge of the High Court has not given any cogent reason and ground for believing the plea of the alibi raised by Muhammad Hafeez considering that the accused raising plea of alibi has to discharged the burden by producing satisfactory, reliable and authenticated evidence that his presence at the place of incident at the relevant time was not possible because of his presence at the relevant time at another place. Reference may be made to Ameenullah v. State (PLD 1976 SC 629), Muhammad Ayub v. State (PLD 1964 Peshawar 288 (F.B). and Azhar Hussain v. State (1983 SCM R 978). Mere production of the attendance register, which was not properly maintained and unaccompanied with a certificate of any responsible officer of the department, could not be termed to be reliable, satisfactory and authenticated evidence to believe the plea of alibi of the acquitted accused, considering also that the learned Judge in para. 19 of the impugned judgment observed that "I have no reason to disbelieved her despite the statement of Mr. Mushtaq Ahmed Sukhera, Additional S.P., most of which was not even admissible in evidence."
12. Adverting to the plea of alibi taken by appellant Noor Ahmed; firstly it may be noted that in support of such pea, he himself did not appear in the witness-box. Though, no adverse inference could be drawn against an accused person for not appearing in witness-box in disproof of allegations and charge, but he had taken a specific peal and burden to prove such plea was upon him, as such; in any considered view, he should have appeared in witness-box in support of his such plea. However; he produced D.W. 1 Shafi Muhammad and D.W. 2 Juma Khan Constables in support of his plea in addition to certificates issued by Private Secretary to Minister for Finance Balochistan and daily diary of Police Station, Uthal. Certificated and copy of daily dairy tendered in evidence are to be kept out of consideration as authors of those certificates and daily diary have not been produced. Mere tender of such certificates and report in evidence would not make said documents admissible in evidence unless proved in accordance with law. Similarly; in absence of any documentary evidence about posting of appellant Noor Ahmed with Minister for Finance and his presence on duty at the relevant time, oral statements of Shafi Muhammad Sepoy and Juma Khan constable could not be believed nor on the basis thereof, it could be said that on the day of incident appellant was not present at the place of occurrence but at Quetta.
It may further be noted that soon after the incident all the appellants did not surrender to the authorities, but remained absconders and a challan was accordingly submitted showing them absconders. Under such circumstances, any certificate obtained by them showing their presence on the day of occurrence at other places, was an effort to procure evidence of their alibi and could not be believed. In the judgment reported in PLD 1975 Peshawar 131 in somewhat similar circumstances; the Hon'ble Judges observed as under: "Accused, after issue of search warrants and proclamation getting certificate of presence in another district from a Government official and such official certifying accused's presence before him on day of occurrence. Accused's conduct, held, indicative of his knowledge of his involvement in case and an effort to procure evidence for his alibi."
In another judgment reported in PLJ 1976 S.C. 283, the Hon'ble Supreme Court held that it is very easy to set up plea of alibi and not always easy to prove it and it must be definitely proved, in order to suffice for rebuttal of a case made out by the prosecution.
In the light of above discussion, in my considered view, the plea of alibi taken by the appellants was false and an afterthought in order to get themselves exonerated from the charge and could not be believed.
For the foregoing reasons, in my considered view, the prosecution has successfully brought the guilt home against the appellants and they were rightly found guilty by the learned Anti Terrorism Court, Khuzdar, as such; appeal being devoid of any merits is dismissed accordingly.