1. ' MEHTA KAILASH NATH KOHLI, J.---This judgment shall dispose of both these Criminal Appeals
(ATA) 341 and 342 of 2004, directed against judgment, dated 18th December, 2004 passed by Special Judge, Anti-Terrorism Court-I, Quetta in Special case No.24 of 2003, whereby; appellants namely; Liaqat Ali Marri (in Appeal No. 341) and, Wadera Mitha Khan, Wadera Kareem Bakhsh and Ali Muhammad (in Appeal No.342) have been convicted and sentenced in the following manner:--
(i) under section 7(a) Anti-Terrorism Act, 1997 read with section 302(b), P.P.C. To suffer imprisonment for life for causing each murder, with fine/compensation of Rs.1,00,000 each, payable to legal heirs of deceased Nasrullah, Najam-udDin, Sakhi Dad, Mehrab Khan, Sher Muhammad and Sultan Jan, in default thereof to further undergo one year simple imprisonment, each.
(ii) Under section 7(c) Anti-Terrorism Act, 1997 to suffer reigorous imprisonment for three years with fine/compensation of Rs.10,000 each, payable to injured Durrani Khan, Akhtar Muhammad and Baloch Khan, in default thereof; to further undergo two months simple imprisonment, each.
(iii) Under section 365, P.P.C., to suffer three years rigorous imprisonment each for abduction of Rehmatullah and Qalandar Khan with fine of Rs.30,000 each, in default thereof; to further undergo three months simple imprisonment, each.
2. ' Benefit of section 382-B, Cr.P.C. Has been awarded in favour of appellants Wadera Kareem Bakhsh and Ali Muhammad alias Lio, and their sentences were to run concurrently."
3. ' Facts of the case, in brief, are that on 3rd July, 2002, at 1-00 p.m. F.I.R. No.9 of 2002, under sections 302/324, Qisas and Diyat Ordinance read with sections 147, 148, 149, 109, 365, P.P.C. Was registered by Levies Station Hadsari, District Loralai on the report of one Nasrullah son of Saifullah Khan, caste Samand-Looni, resident of Dukki, stating therein that complainant and his relatives being lease holders of Chamalang area were residing in Chamalang. It was further alleged that on 29th June, 2002 at about 5-00 p.m. Complainant along with his relatives namely Nasrullah alias Nasro son of Tajjak Looni, Sakhi Dad son of Allah Dad, caste Kattakhail-Looni, Najam-ud-Din son of Mulla Noor Muhammad, Caste Narzai-Looni, Mehrab Khan son of Akhtar Muhammad, caste Samand-Looni, Sher Muhammad son of Jan Muhammad caste Marzai-Looni, Sultan Muhammad son of Siddique Looni, Baloch Khan son of Fazil Khan, caste Samand-Looni, Akhtar Muhammad son of Mashai Looni, Raheem Dad son of Muhammad Kareem Looni, Durrani Khan son of Muhammad Yaqoob Looni, Qalandar Khan son of Nazar Muhammad were present on their lease area, in the meantime; some persons belonging to Marri, tribe namely Daulay son of Haibat Drani-Marri, Wazir Khan son of Nohak DraniMarri, Rozay Khan son of unknown Drani-Marri, Kaka son of Dada Drani-Marri, Mulla Rozay son of unknown Shahijo-Marri, Addo son of Naimat Drani-Marri, Liaquat son of Muhammad Nawaz QalandaraniMarri, Ghulam Bakhsh son of unknown Drani-Marri, Kareem son of Mubarak Shahijo-Marri, Wadera Paind. Khan Pawadi-Marri, Kaloo son of Nokha Bajrani-Marri, Syed Akbar son of Jhanda Khan Bajrani-Marri, Wadera Sher Baz son of Bangui Khan Pawadi-Marri, Jaffar Khan son of Wadera Kareem Dad Pawadi-Marri, Mitha son of Essa Khan Qalandarani-Marri, Lio son of Sawal Khan Siahozai-Marri, Haji Ameer Hamza son of Sawal Khan Siahozai-Marri, Miroo son of Sawal Khan Siahozai-Marri, wearing levies uniform came to their trench and asked them that they are levies personnel and had come to safeguard them, suddenly; they started firing upon them, on account of which Nasrullah alias Nasru, Sakhi Dad, Najam-ud-Din, Mehrab Khan, Sher Muhammad and Sultan Muhammad sustained injuries and died on the spot, while Baloch Khan, Akhtar Muhammad, Raheem Dad and Durrani Khan, sustained firearm injuries and, Qalandar Khan was abducted, as well as, one Labourer was also abducted by said people of Marri tribe, however; one Abdullah Jan son of Kotay caste Looni escaped from their hands. It has been stated that at the instance of Wadera Mir Hazar Bajarani-Marri, Muhabbat Khan son of Fateh Khan (Provincial Minister), Wadera Noor Muhammad Bajarani-Marri, Naseebullah son of Noor Muhammad (District Nazim, Kohlu), Wadera Muhammad Yagoob Marri, Wadera Kareem Dad Pawadi Marri, Wadera Falak Sher son of Wadera Bangul Khan Pawadi-Marri, Wadera Qatal Bajarani-Marri, alleged commission of offence was committed. Motive behind the incident was stated to be dispute over coal lease in Chamalang since long, and accused party forcibly wanted to occupy their lease area, which has been allotted to Looni tribe in revenue record. After completion of investigation, challan to the extent of present accused-appellants was submitted in the Court of competent jurisdiction. Learned Special Judge, Anti-Terrorism Court-I, Quetta took cognizance in the matter; charge was framed, which was denied by the present accused-appellants, while remaining co-accused persons were declared absconders.
4. ' To substantiate accusation, prosecution produced following evidence:-- ' P.W.1. Muhammad Yar son of Niaz Muhammad appeared and deposed that few days before 29th June, 2002, he was present on his lease at Chamalang, one person belonging to Marri tribe came to him and asked him that Muhabbat Khan had called him, one Jamal-ud-Din was also present with him; he and Jamal-ud-Din went along with said person to Muhabbat Khan Marri, where Wadera Kareem Bakhsh and Liaquat were already sitting. Muhabbat Khan asked him to vacate the area i.e. Kharghundi, as the people of Gizaini-Marri tribe had come in that area and they have fear, upon which he agreed on the swear of Qur'an and he along with Liaqat Marri and had handed over vacant possession of Kharghundi to him. It was further deposed that on 29th June, 2002 at 5/6:00 p.m. He along with Jamal-ud-Din were on routine patrolling of their area, when they reached near Sardar trench where they saw about 18 persons appeared, who were wearing levies uniform, who suddenly threw a grenade in the said trench and soon thereafter started firing upon their (witnesses) men, in result whereof they were falling down. It was stated that firing was made by Kareem Bakhsh son of Mubarak, Liaquat Marri, Lio, Mitha Marri, Daulay, Mulla Rozay, while; witness and Jamal-ud-Din hided themselves in a channel known as Shila. It has been further stated that on account of alleged firing Nasrullah alias Nasru son of Tajjak, Najam-ud-Din son of Mula Noor Muhammad Looni, Sakhi Dad son of Allah Dad Looni, Sher Muhammad son of Jan Muhammad, Sultan Muhammad and son of Akhtar Muhammad whose name was not recognized by the witness had died. It was also stated that on account of firing made by above said persons, injuries were caused to Raheem Dad son of Muhammad Kareem, Akhtar Muhammad son of Niaz Muhammad and Durrani Khan son of Yaqoob Khan. Witness had identified accused present in Court namely Liaquat Marri, Wadera Kareem Bakhsh, Lio and Mitha Khan to be the same, while he can identify the other accused persons who had made firing.
5. ' In cross-examination, he stated that he was present on the spot for the purposes of looking after his lease; further stated that they also remained present on their lease during night time. It was stated that he had remained present for one hour with Muhabbat Khan Marri and Muhabbat Khan Marri had introduced Liaquat Marri to him. It was further stated that his lease is situated at a distance of one kilometer from Kharghundi. He denied that his lease was situated at some distance of Muhabbat Khan Marri's lease, further stated that his lease is situated at a distance of two kilometers from the lease of Muhabbat Khan Marri. It was admitted that in between their lease there are mountains. It was admitted that there exists enmity between the tribe of Muhabbat Khan and Gizaini-Marri tribe. It was stated that there is no trench except at Kharghundi and Sardar trench; voluntarily stated that there was a trench wherein two persons were sitting only having telescopes. It was denied that lease of Muhabbat Khan was situated near Kharghundi. It was stated that with regard to the incident, he himself had gone to Tehsildar Dukki and got recorded his statement under section 161, Cr.P.C. On 23rd August, 2003. It was denied that he along with complainant Nasrullah had gone to Tehsildar Dukki; voluntarily stated that he had gone along with Jamal-ud-Din. He denied that Nasrullah was his relative; voluntarily stated that he also belongs to Looni tribe. He denied that before the occurrence of incident, he was called by Muhabbat Khan Marri. It was denied that neither accused persons were wearing uniform nor they had made firing.
6. He denied that in his statement under section 161, Cr.P.C., he had not stated that accused persons after their arrival had thrown grenade in the trench (Confronted, not so recorded). He denied that accused Liaquat Marri and Mitha Khan were not present on the spot nor they had made firing on account of which above said persons died and injured: It was denied that at the instance of Nasrullalt he had made false statement. In further cross-examination, witness stated that he is a school teacher. It was further stated that distance between Killi Bhagat and Chamalang is about 24 kilometers. It was admitted that few days before the incident and on the day of incident there was no vacation in the school; voluntarily stated that he had obtained leave from the school, however; he did not produce any document before Tehsildar in this regard. It was admitted that he had no work in his lease; voluntarily stated that he had visited his lease and returned back. It was admitted that he had not produced any document before Tehsildar with regard to ownership of alleged lease; voluntarily stated that he can produce the same. It was stated that alleged lease was inherited by them. It was further stated that at the time of incident he was present at a distance of 25 yards from Sardar trench, wherein; 12 persons were present; further stated that the persons died were armed with weapons, while the persons who sustained injuries were empty handed. It was admitted that accused Mir Muhabbat Khan Marri, was tribe head of accused persons. It was admitted that on the direction of Muhabbat Khan Marri, he had handed over possession of Kharghundi to them. It was stated that from the date of incident till the date of recording of his statement, he had not gone to Tehsildar. It was denied that he had not given the names of deceased persons, as well as, names of injured persons in his statement (Confronted, not so recorded). It was further admitted that identification parade of accused persons was not made by him. It was denied that accused Ali Muhammad was in Dera Ghazi Khan and Multan from 25th June to 30th June, 2002 and was not present on the spot; further denied that accused Wadera Kareem Bakhsh was also not present on the spot. It was denied that on the day of incident, accused persons had not made firing upon complainant party and the accused persons were falsely involved in the commission of offence. It has been stated that complainant Nasrullah is his tribesman, while he has no relationship with him. He showed his ignorance that some civil litigations are pending between Marri and Looni tribes before civil Courts. Suggestions were made were replied.
7. ' P.W.2. Durrani Khan son of Yaqoob Khan (injured) deposed that he was deputed for watching the coal lease of their tribe situated in Chamalang. He further deposed that on 26th June, 2002 he was present on one of the mountain of their lease area, he was having a telescope, through which he saw that from lease area of Marri tribe some levies personnel came and started claiming their big mountain, while his companions present on the mountain did not make firing upon said persons. It was stated that thereafter firing was started indiscriminately. It has been stated that he had identified four persons wearing levies uniform namely Wader% Kareem, Daulay, Wazir Khan and Ameer Hamza, who had made firing, while he did not identify remaining assailants. It was stated that firing was also made on his mountain and when he climbed down from the mountain and was going towards his lease, he sustained firearm injury on his buttock. It was further stated that when he came down from the mountain, people of Looni tribe had gone, while only two/three persons were present on the spot. He had identified accused Wadera Kareem Bakhsh, while he can identify the remaining accused persons, if produced before him.
8. ' In cross-examination, he stated that at about 5-00 p.m. Incident took place. He did not remember the exact distance between the place of incident and the place where he was present; voluntarily stated that voice can be heard. It was stated that the place where he was standing was situated at a distance of twenty minutes from Levies Station. He has stated that he was not having any weapon with him. It was stated that he was present on a mountain of twenty yards of height. It was stated that his statement under section 161, Cr.P.C. Was recorded by Tehsildar on 13th July, 2002. It was stated that his village was situated at a distance of fifty miles from the place of incident. It was further stated that he used to visit his lease after every five/six days, while on remaining days other paity used to watch the area. It has been stated that being injured on account of alleged incident, he had gone to his house and remained under medical treatment for ,seven days, during which none of he Government officials met with him, however; on 13th July, 2002, Tehsildar came to his house and had recorded his statement, while he himself had not gone to Tehsildar for recording his statement. Various suggestions were made to the witness were denied. It was stated that firing was continuously made for about 2-1/2 hours, in the meantime; he remained sitting in a ditch. It was further stated that after close of firing it was dark, as such; he went to his house and remained under medical treatment of one doctor Hayat. He denied that the assailants were not wearing levies uniform. It was denied that Wadera Kareem Bakhsh was not present on the spot. He showed his ignorance about any settlement between Looni and Marri tribes and there was no dispute between both the tribes. He showed his ignorance about severe enmity between Gizaini and Bajarani sub-tribes of Marri tribe. He denied that people of GizainiMarri tribe had made firing upon his tribesmen and had killed and injured them. He admitted that he is permanent resident of LotiChamalang and complainant Nasrullah is his relative. He did not know the names of fathers of accused Daulay, Wazir Khan and Ameer Hamza. It was stated that at the time of recording his statement, his uncles Muhammad Hussain and Muhammad Hassan were also present with him.
9. ' P.W.3 Haider Khan son of Sardar Hassan Khan appeared and deposed that on 25th May, 2000, on the invitation of Muhabbat Khan Marri he along with other notables of Looni tribe went to MarriChamalang where Muhabbat Khan told them that Hazar Khan, Noor Muhammad, Naseebullah, Falak Sher, Wadera Kareem and Wadera Qatal are demanding 200 feet land each in the coal lease area of LooniChamalang and on refusal, they were threatened for clash, upon which, Sardar Asmatullah replied that they will not give an inch to Marri tribe; thereafter, on 29th June, 2000 six persons of Looni tribe were murdered by people of Marri tribe. It has been stated that in the gathering on 25th May, 2000 Mir Taj Muhammad Mari had disclosed that one person of Nasar tribe and the other man of Looni tribe were murdered by Daulay and Mulla Rozay, in the meantime Muhabbat Khan Marri remained silent; further stated that accused Wadera Kareem Bakhsh, Muhabbat Khan and Mir Taj Muhammad Marri were present in the meeting of 25th May, 2000. He had identified accused Wadera Kareem Bakhsh and Muhabbat Khan Marri present in the trial Court.
10. ' In cross-examination, it was stated that his statement under section 161, Cr.P.C. Was recorded on 14th September, 2002. It was stated that several times people of Looni and Marri tribes had fought over coal lease. It was admitted that Wadera Yaqoob and Naseebullah are notables of Marri tribe, while Naseebullah is also Nazim of Kohlu District. It was denied that accused Muhabbat Khan had not stated in the alleged sitting that Hazar Khan, Noor Muhammad, Naseebullah, Falak Sher, Wadera Kareem Bakhsh and Wadera Qatal demanded 200 feet land each and on refusal to do so, they were threatened for fight. It was admitted by the witness that his father is Sardar of Looni tribe.
11. He denied that he had falsely implicated the alleged persons of Marri tribe. In further cross- examination, he stated that his statement under section 161, Cr.P.C. Was recorded, wherein he had stated that on 25th May, 2000, accused Kareem Bakhsh and Taj Muhammad were present in the alleged sitting (Confronted, name of Kareem Bakhsh was not mentioned). He denied that the alleged sitting/meeting never took place on the date disclosed by him. He denied that after due deliberation with his tribesmen, he had falsely involved the accused persons in the commission of offence.
12. ' P.W.4 Wali Muhammad son of Haji Abdullah Jan deposed that on 29th June, 2002 he along with Meharban and Raz Muhammad after fetching water was going on the mountain where their tribesmen were present in the trench, when they reached near the trench, some people wearing levies uniform appeared who were identified to be Mulla Rozay, Daulay, Wazir Khan, Ghulam Bakhsh, Addo, Ameer Hamza, Miroo, Lio, Liaquat, Sher Baz and Jaffar Khan. It was further stated that one hand grenade was thrown by said persons in the trench and thereafter; they started firing, upon which, they had thrown the water canes and hided them in a ditch; he presumed that Wadera Kareem Bakhsh was also present along with the assailant. He had identified accused Liaquat Marri, Lio (Ali Muhammad), and Ameer Hamza (Mitha Khan).
13. ' In cross-examination, he stated that he had gone to inspect the lease and was present on the spot. He stated that he had not recorded his statement to Levies. It was stated that about seven/eight persons were sitting in the alleged trench. It was denied that all the persons present in the trench were armed with weapons; voluntarily stated the persons who died were in possession of weapons. It was stated that the alleged trench was located on height. It was further stated that there were four other trenches i.e. Two big and two small were located around the place of incident. It was denied that near to their lease, lease of Muhabbat Khan is situated; voluntarily stated that his coal lease is situated on a long distance. Witness stated that he is a school teacher in Killi Bhagat High School and his duty timing is from 7-00 a.m. To 12-30 p.m. It was stated that distance between Killi Bhagat and place of incident is about fifteen kilometers. It was further stated that on a rented vehicle he had come to the place of incident. It was stated that around the place of incident, about 300 persons were present and at the time of incident process of excavation of coal was going on. He admitted that there was enmity between Gizaini-Marri and Bajarani-Marri.
14. He denied that there is dispute between Nasar tribe and Looni tribe. In further cross-examination, he admitted that after the incident he had not met with any Government official, while he himself had gone to Levies Station and had recorded his statement under section 161, Cr.P.C. Wherein he had mentioned about Jaffar Khan (confronted, not so recorded). Suggestions with regard to fathers' names of accused persons were made. He stated that he knows the alleged persons. It has been stated that alleged coal lease in not in his name. It has been further stated that alleged lease is consisted of five kilometers of area. It was stated that distance between camp and place of water was about three/four kilometers. It was stated that his relatives Sakhi Dad (cousin) and Akhtar were present in the trench. He had stated that his statement under section 161, Cr.P.C. Was recorded on 6th July, 2002. It was stated that he had received the knowledge of death of his relatives and tribesmen in the afternoon of second day of the incident. He denied that he was not present on the place of incident. Suggestions were made, were denied.
15. ' P.W.5 Baloch Khan son of Fazil Khan (injured) deposed that on 29th June, 2002, he along with Khan Muhammad and Akhtar Muhammad were present in Chamalang; further stated that they were taking food towards big trench at 5-00 p.m., in the meantime 18/20 people in levies uniform climbed from western side of the trench and asked that they are levies officials and had come for their security. Witness disclosed the names of said persons to be Paind Khan, Jaffar Khan son of Kareem Dad, Sher Baz son of Bangul Khan, Liaquat son of Muhammad Nawaz, Daulay son of Haibat Khan, Wazir Khan son of Notak, Rozi Khan, Mulla Rozay, Kalo son of Noka, Syed Akbar son of Jhanda Khan, Kaka Marri son of Dada Marri, Addo son of Naimat, Kareem son of Mubarak, Ghulam Bakhsh, Lio son of Sawal, Haji Ameer Hamza son of Sawal Khan and Mitha Khan son of Essa. It was stated that firstly the above said persons had thrown a grenade in the trench and thereafter started firing, witness attempted to escape, who had received firearm injury on his left leg; Akhtar Muhammad had also sustained firearm injury on his foot. It has been stated that on account of injury he could not walk, and he was brought down by Khan Muhammad, while Khan Muhammad was able to walk, and thereafter he was shifted to his house. He had identified accused Wadera Kareem Bakhsh, Liaquat Marri and Lio (Ali Muhammad).
16. ' In cross-examination, he stated that for the purposes of watching the lease he had come to Chamalang. It was stated that alleged mountain's height is about 300 yards. It was stated that six persons armed with weapons were present in the trench, apart from big trench, there were two other small trenches. It has been stated that at the time of incident, excavation work of coal was in progress, and; about 500/600 labourers were doing the said work. It was stated that his statement under section 161, Cr.P.C. Was recorded on 13th July, 2002. It was stated that he remained admitted in hospital at Quetta for two days, and thereafter; remained on bed for about 4-1/2 months. It was stated that initially he was taken to Loralai and thereafter, he was shifted to Quetta. He has stated that he is employee of Balochistan Reserve Police. He denied that in his statement recorded under section 161, Cr.P.C., he had stated that when he turned he received bullet injury on his left leg and Akhtar Muhammad sustained injury on his foot, thereafter; he was pulled out by Khan Muhammad and was brought down from the mountain, while Khan Muhammad came on his own foot (Confronted, not so recorded). It was stated that alleged lease was allotted in the name of their forefathers. In lengthy cross-examination, witness supported the prosecution version.
17. ' P.W.6. Akhtar Muhammad son of Mashai (injured) appeared in witness-box and deposed that he along with Baloch Khan and Khan Muhammad were present in Loti-Chamalang, they went for walking and climbed over a mountain and saw that from western side some people, who were wearing levies dresses, climbed over big mountains and introduced themselves to be levies officials; the said persons had thrown a grenade in the trench and thereafter they had started firing. Witness had identified four assailants namely Wadera Kareem Bakhsh, Mitha Khan, Sher Baz and Paind Khan. He had also identified accused Wadera Kareem Bakhsh and Mitha Khan present before the trial Courf, while accused Sher Baz and Paind Khan were absconders. It was stated that on account of fear they returned back and came near to the camp, in the meantime, he sustained firearm injury on his leg, while Baloch Khan had also sustained injury on his leg on account of which his leg was fractured.
18. ' In cross-examination, three days before the incident, he had come to the place of incident. He stated that he is a contractor by profession. It was stated that they have to perform their duties for five days in a month, and the duties are being fixed by one Malik Miroo, who is notable of their tribe.
19. It was stated that about 5-00 p.m. They went out side the camp where about 300 persons/labourers were present and were busy in excavation of coal. It was stated that six persons were present in the trench, upon which firing was made. Various suggestions were made, were replied by the witness. It was denied that he was not present on the spot; further denied that alleged accused persons were not present on the spot and had not made firing. He denied that he had not seen the incident.
20. ' P.W.7 Mian Khan son of Akhtar Muhammad appeared and deposed that on 25th May, 2002, there was Jirga between Marri and Looni tribes, he along with Din Muhammad and Sardar Haider was also present there. It was stated that Muhabbat Khan Marri had stated that Wadera Mir Hazar, Noor Muhammad, Naseebullah (Nazim), Falak Sher, Yaqoob, Kareem Dad and Qatal have demanded for 200 feet of coal lease, on refusal, they will forcibly occupy the said lease area. Muhabbat Khan further stated that if the said persons fight, he will also join them, upon which, Sardar Asmatullah Looni replied that they will not allow single inch of their land. It was stated that after one month, tribesmen of Marri tribe attacked upon them and had killed their six persons and caused injuries to four persons.
21. ' In cross-examination, he stated that his statement under section 161, Cr.P.C., was recorded by Tehsildar after one year of the incident It was stated that he was present in the funeral rights of deceased persons. In lengthy cross-examination, several suggestions were put to the witness, but he remained firm to his examination-inchief.
22. ' P.W.8. Rehmatullah son of Abdul Hakeem (abductee) appeared and deposed that he was working with Sardar Saood for last 17/18 years as cook. It was further stated that two years ago, Sardar Saeed had sent him to Looti-Chamalang as cook. It was stated that on the day of incident, he was taking food to the trench on mountain, in the meantime fighting started between Looni and Marri tribes, he took refuge behind a stone, after close of firing, people of Marri tribe came to him, when he told them that he is empty handed, however; they took him along with them, as well as, Qalandar Looni was also abducted. It was stated that for about ten days they were kept in different places, however; after few days Qalandar was released, while he was not released. It was stated that the accused persons behaved politely with him. He did not know that he was got released by Government officials, or he was released by the accused persons themselves. He did not identify the accused persons, who had abducted him.
23. ' In cross-examination, he stated that he had recorded his statement under section 161, Cr.P.C. In Kohlu and thereafter, his statement was recorded in Dukki. It 'was stated that after three days of his recovery, he had recorded his statement. He denied that on the day of incident, neither he was present on the spot, nor he and Qalandar were abducted by the accused persons.
24. ' P.W.9. Meharban son of Taj Muhammad deposed that on 29th June, 2002, he was working in Looni- Chamalang; Wali Muhammad and Raz Muhammad were also present there. At about 4-45 p.m. He along with Wali Muhammad and Raz Muhammad were bringing water in the camp situated on the mountain, in the meantime accused Daulay son of Haibat Darani, Wazir Khan son of Nohak, Rozay Khan Darani, Mulla Rozay, Wadera Kareem, Kareem Dad, Uddo, Ghulam Bakhsh, Kaka son Dada, Kalo son of Noha, Syed Akbar son of Jhanda Khan, Liaquat son of Muhammad Nawaz and Wadera Paind Khan were seen in levies dress from a distance of 50/60 yards, who initially had thrown a grenade in the camp which caused smoke and thereafter, they started firing upon the persons present in the trench. Witness and his companions had thrown the water canes and took refuge in a ditch. It was alleged that six persons of their tribe were murdered, while four persons were injured and two persons were abducted by the accused persons. He had identified accused Mitha Khan, Wadera Kareem Bakhsh and Lio (Ali Muhammad) present in the Court to be the same, while he did not identify the remaining accused persons.
25. ' In cross-examination, he stated that four/five days before the day of incident, he had come to Chamalang, prior to that he along with his brother used to cultivate their lands. It was stated that he himself had come to Chamalang for the purposes of labour. It was stated that Raz Muhammad and Wali Muhammad were present there prior to his arrival. It was stated that prior to the firing, no person from the trench had come to him for water, nor he had gone to the trench with regard to supply of water to them. It was stated that except one trench, there is no other trench in Chamalang. It was stated that the persons present in the trench were not his relatives. It was further stated that the trench was located at a height of 150 feet. It was stated that none from the trench had made firing. He could not tell the measurement of Looni-Chamalang. It was stated that about 250/300 labourers were working in the coal mines. It was stated that due to fear they escaped from the scene, however; on the day of incident they had not informed the Government officials about the occurence of alleged incident. It was stated that alter three/four days of the incident, he had recorded his statement under section 161, Cr.P.C. While Raz Muhammad and Wali Muhammad were also present with him. It was stated that identification parade of accused Lio (Ali Muhammad) was not made before him. It was denied that accused Mitha Khan Marri and Liaquat Marri had never come to Chamalang and had not made firing. Suggestions were made, were denied.
26. ' P. W.10 Khan Muhammad, Levies Jamadar (recovery witness) appeared and deposed that on 30th June, 2002, he along with Tehsildar and other officials of Levies Station Hoshri went to the place of incident at Chamalang. In the trench, dead-bodies of six persons were lying, which were taken into possession vide recovery memos. (Exh.P/10-A to P/1-F); from the spot, blood-stained earth (Article- P/2) and bloodstained stones (Article-P/3) were taken into possession through recovery memo.
27. (Exh.P/10-G) and the same were sealed in parcel (Article-P/1).
28. ' In cross-examination, witness denied the suggestion that he had not gone to the place of incident, nor in his presence dead-bodies were taken into possession. It was denied that the whole proceedings were made in the Levies Station.
29. ' P.W.11 Khan Muhammad son of Noor Muhammad deposedthat on 29th July, 2002 he along with Akhtar Muhammad and Baloch !Than were present on security duty of their lease at Looni- Chamalang. It was stated that they were present in eastern trench; at about 5-00 p.m. From western side 18/20 persons in levies dress came there and told the that they had come for their security, in the meantime, they threw a gas cylinder towards big trench and started firing with G-3 Rifles and Kalashnikovs; thereafter, they also made firing on eastern trench, and witness escaped by throwing himself in a ditch, in the meantime; wi .Ess had identified some of the assailants i.e. Lio, Mitha, Wadera Kareem, Jaffar Khan, Syed Akbar, Miroo, Haji Ameer Hamza, Liaquat, Gh am Bakhsh, Daulay, Mulla Rozay, Kaka, Addo and Wadera Paind Khan He had identified accused Liaquat, Lio (Ali Muhammad), Kareem B. Sh and Mitha Khan present in the Court to be the same, while other acc sed persons were absconders. It was stated that on account of alleged fi ing, Akhtar Muhammad and Baloch Khan had sustained firearm injuries and six persons were died.
30. ' In cross-examination, it was stated that only two trenches ere in existence on the place of incident. It was stated that eight per ons were present in big trench namely Qalandar Khan, Rehmatullah, Na ru, Najam-ud-Din, Sakhi Dad, Sher Muhammad Alias Lalo, Sultan Muhammad and Mehrab Khan; except Qalandar Khan and Rehmatullah, who were abducted, remaining persons were killed by making firing. It was stated that the ,personl, present in y the trench were having Kalashnikovs and rifles, while Rehmatulah, as well as, they were having no weapons. It was denied that at the time of assault, labourers were working on the site; voluntarily stated that one day prior to the incident, the work was stopped. He admitted that his statement was recorded on 12th July, 2002; voluntarily stated that his supplementary statement was recorded on 22nd August, 2003. It was denied that coal lease of accused Muhabbat Khan was located near to their lease.
31. Suggestions with regard to tribal feuds were made. It was stated that on account of firing leg of Baloch Khan was broken and he had taken up Baloch Khan on his shoulders, while Akhtar Muhammad went on his feet. He did not know that when the dead-bodies were removed from the place of incident.
32. ' P.W.12 Jamal-ud-Din son of Abdul Haque appeared and deposed that he was present in Looni- Chamalang for watching his coal lease area. He further stated that he and Muhammad Yar were sleeping in a room, one Marri came and informed him that Mir Muhabbat Khan Marri had called him; they went along with said person to Mir Muhabbat Khan Marri, who introduced accused Liaquat son of Nawaz Khan Marri to him, as well as, Kareem Bakhsh, Lio and some other Marri people were present there. It was stated that Muhabbat Khan Marri asked Muhammad Yar to give their mountain i.e. Kharghundi because they had feud with Gizaini-Marri, while it was assured that they will also protect their (Loonis') lease area, upon which Muhammad Yar agreed and possession of alleged mountain was handed over to Mir Muhabat Khan Marri. It was alleged that on the next day firing was, made from Kharghundi, which was complained to him, however; they did not agitate as the matter was settled on swear of Holy Qur'an. It was further alleged that on 29th June, 2002, when he was going for walk toward Kharghundi, he saw 18/20 person in levies dress going towards big trench and were making firing. It was stated that accused persons had also made firing upon them, but they saved themselves. It was stated that firing was made by accused Liaquat Marri, Lio, Mitha and other persons, while accused Muhabbat Khan Marti was not present with'them. It was stated that on account of alleged firing made by accused persons, six persons had died, while two persons were abducted and two persons made their escape good, and one person was injured. He had identified accused Muhabbat Khan Marri, Liaquat Marri and Lio (Waders Yaqoob) to be the same.
33. ' In cross-examination, he stated that he cannot tell about existence of other leases around the place of incident. It was stated that ten persons were present in the big trench, while nobody was present in the small trench. At the relevant time 50/60 labourers were doing their work. It was stated that on 23rd August, 2003 statement of witness was recorded under section 161, Cr.P.C.
34. Suggestions were made to the witness. It was stated that he hided himself on whole night of the incident. It was stated that he came to now about the deceased persons, when their dead-bodies were brought in their village by DCO and Tehsildar. Suggestions with regard to false implication of accused persons were denied.
35. ' P.W.13 Qalandar Khan son of Nazar Muhammad deposed that two years ago, he was present in his coal lease at Chamalang, along with him twelve other persons were deputed on watching their lease; at 5-00 p.m. People of Marri tribe made firing upon their people who were present in a trench over the mountain. It was further stated that assailants were forty in number, who were wearing levies uniform. It has been stated that firstly grenade was thrown in the trench and thereafter firing was started, on account of which, six persons died and four persons injured, while witness and Rehmatullah were abducted. It was stated that after abduction they were kept in different places.
36. Witness deposed that he was kept in their (Marris') custody for 27/28 days. He further deposed that at the time of handing over his custody to Tehsildar, two persons of Marri tribe were found standing there, it was told to him that said persons were Daulay and Mulla Rozay.
37. ' In cross-examination, he denied that he was not abducted; further denied that there were no persons with the name of Daulay and Mulla Rozay. It was admitted that he did not know the said persons. It was stated that after 10/12 days of his release, his statement under section 161, Cr.P.C.
38. Was recorded by Tehsildar. He denied that he was not present on the spot.
39. ' P.W.14 Raz Muhammad son of Jan Muhammad appeared in witness-box and deposed that on 29th June, 2002, he was working as cook in Looni-Chamalang coal lease; at 4-45 p.m. He along with Meharban and Wali Muhammad were going to supply water in big trench, he saw about 18 persons of Marri tribe in levies dress, who were going towards said trench, and were 50/60 years ahead of him. It was stated that accused persons had thrown a grenade in the trench and thereafter they had started firing, upon which witness hided himself in a ditch. It was stated that on account of said firing six people of Looni tribe had died, while four were injured and two were abducted by the accused persons. It was stated that in the morning he reached to his house. He had implicated Dada, Kaka, Mitha, Liaquat, Wazir Khan, Mulla Rozay, Wadera Paind Khan, Wadera Kareem, Ghulam Bakhsh, Syed Akbar, Addo, Kaloo, Miroo, Ameer Hamza, Lio, Sher Baz and Rozay Khan, in the commission of alleged offence. He had identified accused Lio (Ali Muhammad) and Wadera Kareem Bakhsh to be the same, while he did not identify the remaining accused present in custody.
40. ' In cross-examination, he stated that fifteen days before the incident, he along with Wali Muhammad had come to Chamalang, while Meharban had come after some days. It was stated that he had gone for labour in Chamalang. It was stated that Qalandar Khan present is small trench was abducted. It was stated that his relatives were present in big trench. It has been stated that deceased Sher Muhammad was his brother. It was stated that after close of firing he had not gone to big trench and thereafter had gone to his house; on the next day, he came to know that his brother had died. It was stated that weapons recovered from deceased persons were not brought by Tehsildar in their village at the time of handing over dead-bodies; voluntarily stated that the assailants had taken away the weapons of deceased persons. It was stated that after seven days of the incident, his first statement under section 161, Cr.P.C. Was recorded, while he did not remember the date of recording of his supplementary statement. It was denied that in his both two statements he had not stated that firstly accused persons had thrown a grenade (Confronted, not so recorded). Witness has made some improvements in his present statement with that of his earlier statements recorded by the Investigating Officer.
41. ' P. W.15 Dr. Muhammad Hayat Nasir, Medical Officer appeared and stated that on 29th June, 2002, he was present in Civil Dispensary Banhar, Tehsil Bukki, District Loralai; on the same day, injured Durrani Khan was brought to him; witness found following injury on the person of injured:- "Injury:- cross wound (skin deep) on back left side of the thigh.
42. ' Nature of injury:-- Simple Weapon used:-- Fire arm".
43. ' After providing medical treatment, witness issued Medio legal certificate (Exh.P/15-A). Witness has further stated that on 4th August, 2002, Naib Tehsildar Dukki, brought Rehmatullah son of Abdul Hakeem having no injury with the history of kidnapping, who on examination was found to be healthy, in this regard witness issued medical certificate and produced the same as Exh.P/15-B.
44. ' P.W.16 Dr. Mehrab Khan MLO, District Headquarter Hospital, Loralai appeared and stated that on 30th June, 2002, he had examined injured Baloch Khan and Akhtar Muhammad and found following injuries on their persons:-- ' Baloch Khan "a wound on left ankle joint; entrance of fire-arm on above medical side of medical muscle, exit on lateral side of the leg above the let lateral muscles. Fracture on left lower leg. (Grievous)"..
45. ' Akhtar Muhammad "a wound on the anterior aspect of the right lower leg; entrance of firelalm on the anterior of the right lower leg and exit on the lateral side of right lower leg. (Simple)."
46. ' In this regard witness produced medico legal certificates (Exhs. P/16-A and 16-B).
47. ' P.W.17 Nasrullah son of Saifullah Khan (complainant) while reiterating the contents of his report (Exh.P/17-A) has deposed that on 29th June, 2002, at about 5-00 p.m. He had gone to visit his paternal cousin Mehrab Khan at Loti-Chamalang, and on his return from the trench, he saw Daulay, Kaka, Wazir Khan, Addo, Ghulam Bakhsh, Rozi Khan, Wadera Paind Khan, Sher Baz, Jaffar Khan, Liaquat, Kareem Dad, Mubarak, Mulla Rozay, Mitha Khan, Syed Akbar, Kaloo Khan, Lio, Miroo and Ameer Hamza at a distance of 20/25 paces, who were wearing levies dress, who stated that they are levies personnel and have come for their security, and thereafter, they started firing, in result whereof Sultan Muhammad, Nasrullah alias Nasru, Najam-ud-Din, Sakhi Dad, Sher Muhammad and Mehrab Khan died on the spot, while Baloch Khan, Akhtar Muhammad, Raheem Dad and Durrani Khan had sustained injured, as well as, Qalandar Khan and Rehmatullah (labourer) were abducted by the said accused persons. It was stated that at he instance of Wadera Hazar Khan, Wadera Noor Muhammad, Wadera Naseebulah, Wadera Mir Muhabbat Khan, Wadera Kareem Dad, Wadera Balakh Sher and Wadera Qatal, alleged commission of offence was made. It was stated that after the incident he had gone to Tehsildar, but did not meet him till 2nd July, 2002, as such; delay in lodging his report was occurred. He had identified accused Mitha Khan, Lio (Ali Muhammad), Wadera Kareem Bakhsh, Liaquat Marri, Wadera Qatal, Naseebullah Khan, Wadera Yaqoob, Balakh Sher and Mir Muhabbat Khan to be same.
48. ' In cross-examination, he stated that two days prior to the incident he had come from his house (Killi Zarghoon) to Chamalang for seeing his relatives. It was admitted that there were 200/300 persons were present in the camp. In lengthy cross-examination, formal suggestions were put, were replied accordingly. It was admitted that prior to the incident, there was a settlement took place between Marri and Looni tribes; voluntarily stated that on 25th May, 2002, after settlement, while coming back vehicle of Haji Hussain Looni collided with a landmine, and again the relations between the two tribes became strained. Suggestions with regard to false implication of accused persons were denied.
49. ' P. W.18 Abdul Rahman Tehsildar appeared and stated that on 3rd July, 2002, on the basis of report (Exh. P/17-7), F.I.R., (Exh. P/18-A) was registered by him. He further stated that on 29th June, 2002, through wireless message, he had received information that people of Marri tribe had attacked upon the people of Looni tribe in Looni-Chamalang area, on account of which, people of Looni tribe were killed. On receipt of said information, at 10-00 p.m. He along with ADO Dukki and other officials of BRP and Levies proceeded to the place of incident and on 30th June, 2002 at 11-00 a.m. They reached on the spot and found six dead-bodies of Loonies lying out side the trench, which were taken into possession through recovery memos. (Exhs.P/10-A to P/10-F). He had taken into possession blood-stained earth of deceased persons through Exh.P/10-G, and prepared site-plan (Exh.P/18-B). It was stated on the spot, he had searched empties of weapons used in the commission of offence, but did not find the same. It Was further stated that the dead-bodies were ruined and there were no medical facilities in the area. It was stated that at the time of bringing the dead-bodies in Killi Lundi Mir Khan, relatives of deceased persons were already present there, who had refused to conduct post-mortem of the dead-bodies. He had produced Musheer Namas of dead-bodies of deceased persons (Exhs. P/18-D to P/18-J) and on the application of complainant Nasrullah (Exh.P/18-C) dead-bodies were handed over to him vide receipt (Exh.P/18-K). Witness stated that complainant had told him that after burial of dead-bodies, he will come and register the report, thereafter; on 3rd July, 2002, complainant named the above said accused persons, responsible for the commission of offence. It was stated that he had recorded statements of seven witnesses and investigation was handed over to Naib Tehsildar Ghulam Fareed.
50. ' In cross-examination, suggestions were made. It was denied that at the time of registration of case, complainant was proclaimed offender. It was admitted that none of the witnesses had nominated accused Ali Muhammad.
51. ' P.W.19 Ghulam Fareed, Naib Tehsildar/Investigating Officer deposed that on 17th July, 2002; investigation of the case was handed over to him. He has stated that he had recorded statements of witnesses on the following dates i.e., abductee Qalandar Khan (24-7-2002), Rehmatullah (4-8- 2002), Mian Khan, Din Muhammad, Sardar Haider Khan (14-9-2002), Baloch Khan and Durrani Khan (21-8-2002), Muhammad Yar, Meharban (22-8-2002) and on 23d August, 2002 statements of Akhtar Muhammad, Khan Muhammad and Abdullah Jan were recorded. It has been stated that on 9th September, 2002, statement of accused Ali Muhammad alias Lio was recorded in Loralai Jail, who was detained in some other case, while statement of accused Wadera Kareem Bakhsh was recorded in District Jail Quetta. On 3rd October, 2003, investigation of the case was handed over to Crimes Branch, Quetta.
52. ' In cross-examination, he admitted that witnesses Rehmatullah, Haider Khan, Mian Khan, Din Muhammad, Baloch Khan, Durrani Khan, Muhammad Yar, Meharban, Akhtar Muhammad and Abdullah had not nominated accused Ali Muhammad; further admitted that identification parade of accused Ali Muhammad was not conducted by the eyewitnesses to ascertain that he is Lio. It was admitted that accused Ali Muhammad was detained and was undergoing conviction under section 13-E of Arms Ordinance and he was Investigating Officer in the said case, and in the said case name of accused Ali Muhammad was mentioned as Ali Muhammad only. It was admitted that during course of investigation, disclosure memo. Of accused Ali Muhammad was prepared, wherein accused had stated that at the time of incident, he was not present on the spot, while he was in Multan. It was admitted that statement of witness namely Qimat Khan was recorded with regard to disclosure memo. Of accused Ali Muhammad. He denied that he had not conducted proper investigation in the present case.
53. ' P.W.20 Zameer Hussain, S.-I./Investigating Officer, Crimes such, Quetta deposed that on 6th December, 2003, investigation of the case was handed over to him. He had conducted investigation from accused Abdul Kareem and Ali Muhammad alias Lio in District Jail Quetta, and after completion of investigation on 13th December, 2003, interim challan (Exh. P/20-A) was prepared. He had identified accused Abdul Kareem anil Ali Muhammad alias Lio.
54. ' In cross-examination, he admitted that during course of investigation, accused Abdul Kareem and Ali Muhammad showed their ignorance with regard to the present alleged incident and stated that at the time of incident, they were not present in Chamalang. It was stated that on 11th December, 2003 investigation was carried out and statements of accused persons were recorded on the same day. It was stated that no evidence was produced on record to ascertain that accused Ali Muhammad is also known as Lio.
55. ' P.W.21 Barkat Hussain, IP/Investigating Officer Crimes Branch Quetta appeared and deposed that on 17th January, 2004 investigation of the case was handed over to him, during course of investigation, he had searched absconding accused persons and efforts were made to gather more evidence, in this regard he had also visited Dukki and Loralai. It was stated that during course of investigation accused Balakh Sher Marri, Wadera Qatal, Wadera Yaqoob Khan, Naseebullah, Mir Muhabbat Khan Marri, Liaquat Marri and Mitha Khan had obtained bail before their arrest. It was stated that above accused persons were interrogated, who had denied the commission of alleged offence. On the basis of evidence on record, supplementary challan (Exh.P/21-A) was produced before the Court. It was stated that efforts were made for causing arrest of absconding accused persons and thereafter, second supplementary challan (Exh.P/21-B) was prepared. In cross- examination, he stated that since 17th January, 2004 he is conducting investigation in the case.
56. ' On close of prosecution evidence, statements of accused-appellants Balakh Sher alias Falak Sher, Naseebullah, Wadera Yaqoob, Mitha Khan, Qatal Khan, Muhabbat Khan Marri, Liaquat Ali Marri, Ali Muhammad alias Lio and Wadera Kareem Bakhsh were recorded under section 342, Cr.P.C.
57. Accused Wadera Kareem Bakhsh, Mitha Khan, Mir Liaquat Ali Marri also recorded their statements on oath under section 340(2), Cr.P.C. Accused Wadera Kareem Bakhsh (appellant) deposed that he was residing with his family in Marri-Chamalang area and used to cultivate land, subsequently, coal mines were excavated, and he became shareholder of two seam six haulage. It was stated that above said coal mine and cultivation were his only sources of income: It was stated that his income was Rs.50,000 per month, after sometime, quantity of labourers increased and he along with his family shifted to Kohlu. It was stated that prior to the present incident, there was no dispute between Marri tribe and Looni tribe, while they were having visiting terms with each other and they also used to purchase food stuff from Looni tribe. It was stated that on 27th June, 2002, he came from Kohlu to Sibi and then came to Quetta and stayed in the house of his relative namely Dad Muhammad. On 28th June, 2002 he went to the house of his son-in-law and was invited by Dad Muhammad for dinner on 29th June, 2002, where he met Usman, Laloo, Shef Muhammad, Din Muhammad and Dad Khan. It was stated that from 27th June, 2006 till first July he remained in Quetta and had not committed the alleged offence.
58. ' In cross-examination, he stated that he is owner of 10/15 acres of land in Chamalang (Dukki), while he could not tell Khasra number etc. Of the same. He did not know the allotment number of his coal mine lease. He is paying royalty to Government. He stated that he is illiterate. It was admitted that there was no enmity between both the tribes. It was denied that they usually fight on coal lease disputes. It was denied that Kareem wanted to usurp the leases of Loonies by force; further denied that they had demanded 200 feet each from Looni tribe and had also threatened them for dire consequences. It was denied that on 29th June, 2002, he along with other accused persons had launched attack and killed six persons of Looni tribe, as well as, caused injuries to four persons and two persons were also abducted by them. He denied that from 29th June, 2002 to 1st July, he was not present in Quetta.
59. ' Accused Mitha Khan (appellant) deposed that on 29th June, 2002, he was present in his school situated in Killi Tamboo Wadera Essa Khan and after close of school at 12:30 p.m. He went to his house and after taking lunch went to sleep and thereafter had gone to his lands and after Maghrib prayers came back to his house. It was stated that his lands are situated at a distance of one kilometer from Killi Wadera Essa Khan. He has stated that he has no concern with the alleged offence and pleaded his innocence.
60. ' In cross-examination, he stated that he is head-teacher of his school. It was stated that he had availed 10 days leave. It was further stated that from 17th September, 2002 to 27th September,. 2002 he was on leave. He denied that there was no such school in his village. It was denied that on 29th June, 2002 he had not gone to his school. It was denied that he has prepared a formal record of his school. He denied that few days before the incident, he along with Muhabbat Khan, Liaquat Marri and Wadera Kareem Bakhsh etc. Had gone to Looni-Chamalang and had demanded of 200 feet land each from Looni tribe. He denied that they had threatened that they will occupy the said lands by dint of force. It was denied that on 29th June, 2002, he along with other accused persons, wearing levies dress had killed six persons of Looni tribe, who were present in their trench and had caused injuries to two persons and on going back they had also abducted two persons.
61. ' Appellant-accused Mir Liaquat Ali Marri deposed that on 29th June, 2002, he being Nazim of Union Council Karam Khan Shaheed had called session of Union Council, after having issued notice to members on 26th June, 2002. It was further deposed that on 29th June, 2002 at about 11-00 a.m.
62. Session started but on account of non-availability of members, the same was adjourned and at 1- 00 p.m. Proceedings of session started, wherein Naib Nazim Sher Jattak, Atta Muhammad, Misri Khan, Babu Khan Jamal Khan and other members were present. It was stated that the session closed at 6-00 p.m. It has been stated that the present case, as well as, other cases, registered Against him and his family members were based on mala fides, as well as, on account political rivalry. It was stated that sessions of Union Council was held in Kohlu, while the place of incident was situated at a distance of 180 kilometers. He stated that he has no concern with the alleged commission of offence.
63. ' In cross-examination, he denied the suggestion that before the occurrence, he and Muhabbat Khan Marri etc. Had demanded 200 feet land each in Looni-Chamalang belonging to Looni tribe. It was denied that in his presence, Muhabbat Khan Marri had threatened the tribesmen of Looni tribe.
64. It was denied that on 29th June, 2002, he along with other accused persons had gone to Looni- Chamalang in levies dress and had committed the alleged commission of offence. It was denied that on 29th June, 2002, session of Union Council was not called; further denied that he had manipulated false documents with regard to said proceedings. It was denied that co-accused persons were also involved in the alleged conspiracy. He denied that he had made false statement.
65. ' Appellant-accused Ali Muhammad deposed that he was residing in Dukki and since four/five years he is residing in Kohlu with his family. It was further stated that he is residing with his brothers namely Sher Muhammad, Baz Muhammad, Wali Muhammad, Liaquat Khan and Essa Khan, while Ameer Hamza and Miroo are not his brothers. He has categorically stated that his name is Ali Muhammad and has no nick name, in this regard he had produced documents i.e. NIC, Local certificate of his father and judgment of Sessions Judge Loralai (Exhs. D/1-A to D/1-C). It has been stated that on 25th June, 2002, he along with Mehrab Khan, Sher Khan and Atta Muhammad had gone to Dera Ghazi Khan in connection of his business and had remained there for four days and on 29th June, 2002 they went to Multan and in the evening when he contacted to his house on telephone, it transpired that there was severe law and order situation and one Munshi Jan Muhammad has asked him that he should not purchase the goods and come back, consequently; on 30th June, 2002 he started in wagon and reached Kohlu at 11-00 a.m. He pleaded that he had not committed any offence. It has been stated that there is a dispute between Bajarani-Marri and GizainiMarri and of being Bajarani-Marri, he has been falsely roped in the present case.
66. ' In cross-examination, he stated that he bears his separate local certificate. It was stated that he had got prepared his father's certificate (Exh.D/1-B) three/four days before the incident. It was denied that to save himself, as well as, his brothers he got prepared the said certificate. It was denied that Ameer Hamza and Miroo are his brothers. It was stated that Naseebullah Marri is Nazim of Kohlu District, who is also accused in the present case. He admitted that people of Looni tribe well recognize him by name, face and parentage. Various other suggestions were made, were denied.
67. ' In defence, appellants-accused produced following evidence:-- ' D.W.1 Muhammad Yousaf, representative of Secretary Union Council Kohlu city appeared and produced minutes of session (Exh.D/1-D) and notice (Exh. D/1-E) and verified the same from original record (Exhs. D/1-DI & D/1-EI), In cross-examinatoin, he denied that he is subordinate to Nazim; voluntarily stated that he is subordinate of Town Municipal Officer. It was denied that Town Municipal Officer is subordinate to Nazim. It was denied that documents relating to proceedings are being maintained by Nazim of Union Council. It was admitted that the documents (Exh.D/1-D & D/1-E) bear signatures of Nazim. It was denied that the date i.e. 24th June, 2002 is changed to that of 29th June, 2002. It was denied that on 29th June, 2002, sessions of Union council was not held and the documents were falsely prepared. D.W.2 Atta Muhammad son of Akhtar Muhammad is councilor of Union Council Karam Khan having stated that sessions of Union Council was held on 29th June, 2002. P.W.3 Faiz Muhammad J.V. Teacher having produced copy of attendance register (Exh. D/3-A) and verified the same from original (Exh.D/3-AI). D.W.4 Dad Muhammad appeared and deposed that in the last week of June, accused Wadera Karem Bakhsh was present with him in Quetta. D.W.5 Mehrab Khan son of Yar Khan deposed that on 25th June, 2002, he along with Ali Muhammad had gone to Dera Ghazi Khan and thereafter went to Multan and on 29th June, 2002 returned back to Dera Ghazi Khan and on 30th June, 2002 they came to Kohlu.
68. ' On conclusion of trial, learned Special Judge, Anti-Terrorism Court-I, Qeutta vide judgment, dated 18th December, 2004, while acquitting co-accused Muhabbat Khan Marri, Wadera Naseebullah, Wadera Muhammad Yaqoob, Wadera Balakh Sher, Wadera Qatal and proclaimed offenders Hazar Khan, Wadera Kareem Dad, Wadera Noor Muhammad, Convicted and sentenced the present appellant-accused in the aforementioned manner. Being aggrieved of their convictions and sentences, present appeals have been filed before this Court.
69. ' Messrs H. Shakeel Ahmed, Kamran Murtaza and Muhammad Qahir Shah, Advocates appeared on behalf of appellants-convicts, while Mr. Bashir Ahmed Qazi, Special Prosecutor, ATA appeared on behalf of State.
70. It has been contended by learned counsel for appellants-convicts A that the F.I.R. Has been lodged after a delay of six day on 3rd July, 2002 after due deliberation and consultation. It has further been contended that though the Tehsildar had reached on the spot on 30th June, 2002, the next day of the commission of offence, who had handed over the dead-bodies was bound to register the case, but; he appears to have conducted preliminary investigations and thereafter on the application filed on 3rd July, 2002, a case was registered. It is further stated that eye-witnesses have not been named in the said F.I.R. And there statements under section 161, Cr.P.C. Were recorded after considerable delay. It is further stated that the statements of eye-witnesses do not interlink each other and show presence of them, thus; statements recorded after long period have remained unexplained as to why they have failed to record the statements of witnesses. It is also stated that the case of prosecution is full of contradictions and improvements, and thus; benefit of these factors is to be extended to the accused persons and they be acquitted of the charge, while setting aside the impugned judgment. It has been stated that the statements of alleged abductees were also recorded after considerable B delay, even after their release, none of the alleged abductees did name the accused persons and were not declared hostile, which has demolished the case of prosecution by all intents and means.
71. ' On the other-hand, learned Special Prosecutor, ATA has contended that there are eye-witnesses, who have implicated the accused persons in the commission of offence, and thus; they have rightly been convicted of the charge. Learned Special Prosecutor had failed to explain as to why delay in lodging the F.I.R. Was made and as to why the statements of alleged eye-witnesses were recorded with such a long delay.
72. ' We have considered the arguments advanced by learned counsel for the parties and perused the record. From the statement of P.W.18 Abdul Rahman (Tehsildar) he had stated to have received information on 29th June, 2002 on wireless that some Marri people had attacked upon. Looni tribe whereupon people of Looni tribe have died. He stated to have started at 10-00 p.m. Towards Chamalang. He was allegedly accompanied by EDO Dukki and Levies personnel; he reached on the place of incident on 30th June, 2002; he had recorded fardats (Exh.P/10-A to P/10-G) and also prepared plan on the spot. It was stated that he had handover dead-bodies to the legal heirs without autopsy as their relatives had refused to have post-mortem of the deceased persons. He has stated that P.W.17 Nasrullah, the complainant had stated that after burial of deceased persons, in consultation with legal heirs of deceased, he will register the report, and thus; he had filed application on 3rd July, 2002 and the Investigating Officer had recorded statements of witnesses i.e. Raz Muhammad, Wali Muhammad and Meharban were recorded on 6th July, 2002, Akhtar Muhammad and Khan Muhammad on 12th July, 2002, and; on 13th July, 2002 statements of Baloch Khan and Durrani Khan were recorded. On 17th July, 2002, investigation was handed over to Ghulam Fareed, Naib Tehsildar.
73. ' The first question for consideration is as to whether, the F.I.R. Was properly recorded and if not, whether the Tehsildar had the jurisdiction to start with the investigation of the case without there being any complaint or F.I.R. It has been repeatedly held by the superior Courts that through First Information Report in a criminal case is an extremely vital and valuable piece evidence for the purpose of corroborating the oral and ocular evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye-witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay the report not only gets bereft of the advantage of spontaneity danger creeps in of the introduction of coloured version.
74. Before drawing any conclusion another aspect to be examined by us, is that the report does not show the name so the witnesses, who were present at the site even, it has been lodged after lapse of five/six days. It would be proper to give the details of the statements recorded under section 161, Cr.P.C. As under:-- Name of witness Under section 161,.Cr.P.C.
75. P.W. 1 Muhammad Yar (eye-witness) Recorded on 23rd August, 2003 after lapse of one year and one month.
76. P.W.2 Durrani Khan (eye-witness) Recorded on 22nd August, 2003 after lapse of more than one year (he has not named accused Liaquat Ali).
77. P.W.3. Haider Khan (eye-witness) Recorded on 14th September, 2002 after lapse of 2-1/2 months.
78. P.W.4 Wali Muhammad (eye- witness) Recorded on 22nd. August, 2003 after lapse of about one year two months.
79. P.W.5 Baloch Khan (eye-witness) Recorded on 21st August, 2003 after lapse of about one year two months.
80. P.W.6 Akhtar Muhammad (injured) (eye- witness)Recorded on 12th July, 2002 after lapse of twelve days.
81. P.W.7 Mian Khan (circumstantial witness) Recorded on 14th September, 2002 after lapse of two months 14 days.
82. P. W.8 Rehmatullah (abductee) Recorded on 4th August, 2002, after lapse of more than two months.
83. P.W.9 Meharban (eye-Witness) Recorded on 21st August, 2003 after lapse of two years two months.
84. P. W.10 Khan Muhammad (recovery witness) who has shifted the dead-bodies and secured blood-stained stones/earth.Recorded on 30th June, 2002.
85. P.W. 11 Khan Muhammad (eye-witness) Under section 161, Cr.P.C.
86. P. W.12 Jamal-ud-Din (eye-witness) Recorded on 22nd August, 2003 after lapse of one year one month.
87. P.W.13 Qalandar Khan, who statedly abducted by the accused persons; he has not named the accused in the statementRecorded on 24th July, 2002 after delay of more than twenty days.
88. P.W.14 Raz Muhammad His first statement was recorded after seven days, while second statement was recorded after one year.
89. P. W.15 Dr. Muhammad Hayat, who has stated that Rehmatullah was brought with the history of kidnapping by Naib Tehsildar Dukki; he had examined him and recorded his statement in Court.
90. P. W.16 Dr. Mehrab Khan Tareen, who had examined injured Baloch Khan (P.W.5) and Akhtar Muhammad (P.W.6).
91. P.W.17 Nasrullah stated to be complainant of the case has produced complaint (Exh. P/ 17- A) has also not been able to explain delay in lodging the report.
92. P.W.18 Abdul Rahman, Tehsildar/Investigating Officer was recorded.
93. From the perusal of above record, it is abundantly clear that neither the F.I.R. Was lodged promptly nor statements of the witnesses were recorded with promptitude and in cross-examination they were enquired about the delay in recording the statement have not been explained. Even the statements of alleged eye-witnesses are not interlinked and interconnected as the witnesses did not show presence of the other alleged eye-witnesses, they have also failed to explain that despite the fact that they were present in the area, why they did not come forward for recording their statements at the earliest possible time, even; the complainant stated that he recorded the complaint after delay of five days. It is settled position of law that the delay per se may not be sufficient to discard the statement, but their statements have to be considered in the light of facts and circumstances of the case. In the case in hand, two tribes were inimical to each other on the excavation of coal and there was dispute over mining area. It has been stated by the witnesses that about one or two days ago, Mir Muhabbat Khan Marri and others came for obtaining 200 yards area from each of the Looni tribe with the stand that they are already holding the area. Some of the witnesses have stated that the accused persons were wearing Levies dress and were duly armed having thrown a bomb in a trench and thus; thereafter started firing, and; some of the witnesses stated that accused were 17/18 in number, while some of the witnesses stated that the assailants were 27/28 in number and while going back had taken two persons, who were abducted i.e. P.Ws. Rehmatullah and Qalandar Khan. The fact remains that if they were abducted, why they failed to name the accused persons in the commission of offence and also the alleged abductees have been declared hostile in the case. If their statements are believed, it negates the presence of accused persons and falsifies the story built-up against accused-appellants. It has also come on record that the witnesses are residents of the area, have kept mum for a long period and did not record any statement implicating the accused persons at the earliest possible time. P.W.18 Abdul Rahman had also failed to perform his duty in recording the F.I.R. And he waited for the complaint to be filed, which has further caused suspicion of the allegations levelled against accused persons.
94. The Hon'ble Supreme Court in the case of Muhammad Iqbal v. The State (1996 SCM R 1910) had accepted the appeal as there was delay of recording F.I.R. For two days. Reference is also made to the cases of Astam Khan v. The State (1995 PCr.LJ 459) (Peshawar), Roshan Ali and another v. The State (1976 PCr.LJ 1122 (Karachi)) and Jhando and another v. The State (1969 PCr.LJ 51 (Karachi)). In one of the cases, their lordships of the Federal Shariat Court while examining the delay of the F.I.R.
95. Has been pleased to hold that immolation before any recording the F.I.R., as well as, delay in recording the statements of witnesses and had acquitted the accused. Reference is made to the case of Azmat Khan v. The State PLD 1982 FSC 4.
96. From Overall examination of the evidence, delay in recording the F.I.R., delay in recording the statements of witnesses under section 161, Cr.P.C. Which have not been explained either by the Investigating Officer or the witnesses and the discrepancies in the statements of the witnesses, as well as, the fact that the accused were not named by the alleged abductees, we are of the considered opinion that the prosecution has failed to prove the case beyond shadow of doubt.
97. Extending benefit of doubt, impugned judgment is directed to be set aside and the appellants- accused are acquitted of the charge. They are on bail; their bail bonds stand discharged, and accordingly, the appeals are allowed.