1. ' GHULAM DASTAGIR A. SHAHANI, J.---By this common judgment, I intend to dispose of the above titled three Criminal Appeals.
2. ' Appellants Anwar, Qlanadar Bux and Muhammad Saleh have been convicted for committing offence punishable under section 302(b), P.P.C. And thereby sentenced to suffer rigorous Life Imprisonment and also to pay fine of Rs,50,000 whereas, in case of non-payment of fine they all were directed to suffer simple imprisonment for a period of 6 months more.
3. ' Being aggrieved and dissatisfied with the above conviction and sentence, the Criminal Appeals have been filed separately by appellants.
4. ' Brief facts of the case are that on 13-9-2002, one Muhammad Channa lodged F.I.R. At Police Station Dadu stating therein that, on 12-9-2002 at about 10-00 p.m., complainant along with his brothers were standing in a common street, where above named appellants armed with deadly weapons, came and caught hold from the neck of one of his brothers namely Ali Gul and gave him kicks and fist blows, as he had altercated with them a day before. Complainant party tried to save Ali Gul, but appellant Muhammad Saleh alias Babu made straight fire from his .12 bore pistol which hit Ali Gul on his left thigh. Complainant party gave hakals, upon which accused persons made firing towards them, but fires missed, as they lie down on the ground. The voice of fires attracted the neighbours, on seeing them, the appellants/ accused ran away. After obtaining letter from police station, the injured was taken to a hospital, who succumbed to injuries, hence such F.I.R. Was lodged.
5. ' After usual investigation, challan was submitted showing appellants namely Muhammad Saleh alias Babu and Anwar in custody and let off co-accused Qalandar Bux alias Papoo, under section 497, Cr.P.C.
6. ' Complainant party moved applications for joining co-accused Qalandar Bux alias Babu.
7. Application was allowed and proposed accused was joined as co-accused.
8. ' Copies of all the documents were supplied to the accused. Charge was framed, to which they pleaded not guilty and claimed trial.
9. ' In support - of their cases prosecution examined PW No,1 (Dr. Muneer Ahmed Abbasi) Exh.7, who produced provisional medical certificate and postmortem report of deceased Ali Gul as Exhs.7/A and 7/B respectively, P.W No,2 complainant (Muhammad Channa) as Exh.8, who produced original F.I.R. Exh.8/A,' p.W No,3 Man Muhammad) Exh.9, P.W No,4 (Abdul Qayoom) as Exh.10, P.W No,5 (A.S.-I.
10. Nisar Ahmed) who produced Mashirnama of place of Wardat Exh.1/A, P.W No,6 (ASI Rasool Bux)
11. Exh.12, who produced Mashirnama of arrest of accused Muhammad Saleh alias Babu, Mashirnama of recovery of pistol and a copy of F.I.R. Of case under section 13(E), Arms Ordinance, Mashirnama of recovery of Pistol from accused Anwar, copy of case under section 13(E), Arms Ordinance registered against appellant Anwar, Report of Ballistic Expert and Chemical Examiner as Exhs.12/A to 12/G respectively, P.W No,7 (Inspector Abdullah Unar) Exh.13, who produced a copy of the order of SP Investigation and receipt of delivery of case papers. As Exhs.13/A and 13/B respectively, P.W No,8 (A.S.-I. Muhammad Siddiq Mallah) as Exh.15, who produced a copy of entry No,21 dated 12-9-2002, letter of referring the injured to Medical Officer, Mashirnama of injuries sustained by Ali Gul, letter addressed to Medical Officer for conducting the postmortem of deceased, Mashirnama of dead body, inquest report, receipt of delivery of dead body to P.W. Khan Muhammad, Memo. Of clothes of deceased as Exhs.15/A to 15/H, P.W. No,9 (Mashir Zulfiqar Ali) as Exh.16, P.W. No,10 (SIP Abdul Qayoom Jokhio) as Exh.18.
12. ' Statements of accused were recorded under section 342, Cr.P.C. In which they denied the commission of offence and pleaded their innocence. However, one of the accused namely Muhammad Saleh in his statement states that deceased Ali Gul and other private P.Ws wanted to commit sodomy with him, as they have a fair looking and they wanted to drag him in the house whereby he was passing. He further states that deceased was armed with deadly weapon and he injured by self suffered injury, else he is innocent and not caused any injury to any one including deceased. However, he neither examined himself on oath nor examined any witness in his defense.
13. After completion of usual trial, trial Court framed following points for determination:-
(1) Whether deceased Ali Gul Chano died due to unnatural death?
(2) Whether present accused on 12-9-2002 at about 2200 hours in the night at common street adjacent with house of complainant situated in Shahani Mohalla Dadu duly armed with pistols in furtherance of their common intention caused fire arm shot injuries to deceased Ali Gul and committed his murder so also caused made fire upon complainant party with intention to commit their murder?
(3) What offence if any has been committed by the accused?
14. ' However, trial Court after recording statements of P.Ws and going through the material passed the impugned judgment convicting the appellants/accused as above, hence present appeal.
15. ' On 4-8-2008 appellant Muhammad Saleh requested that on Government expenses he may be provided a lawyer as he is not in a position to engage a counsel. However, Mr. Noor-ul-Haq Qureshi Advocate voluntarily consented to appear on his behalf with his consent, on the ground that he is already appearing on behalf of co-accused namely Qalandar Bux in Criminal Appeal No,57 of 2007 and matter adjourned for 11-8-2008.
16. ' Heard Mr. Noor-ul-Haq Qureshi learned counsel appearing for the appellants namely Qalandar Bux alias Papoo in Criminal Appeal No,57 of 2007, so also on behalf of Muhammad Saleh alias Babu in Criminal Jail Appeal No,74 of 2007 respectively, who states that appellants are apparently innocent and have not committed offence as alleged by the prosecution. All the prosecution witnesses are so related and P.Ws have not supported to the version of complainant and there are major contradictions in respect of evidence of the witnesses. He further states that active role has been alleged against appellant Muhammad Saleh to the extent that he fired upon deceased Ali Gul by .12 bore pistol, which hit him, whereas, role of ineffective firing has been attributed against appellants namely Anwar and Qalandar Bux. So far Qalandar Bux is concerned, he was out of station and his name was also let off by the police under section 497, Cr.P.C., though subsequently joined as per directions of the concerned Magistrate. So far recovery is concerned, pistols have been recovered from accused/appellants Muhammad Saleh and Anwar (both). Incident is dated 12-9-2002, whereas F.I.R. Registered on 13-9-2002 and incident is alleged to have been taken place in a common street of Dadu city. Appellants were arrested on 22--9-2002 and recovery of weapons was effected on 26-9-2002 and 28-9-2008 from Saleh and Anwar. So far analyzer report in respect of crime weapon recovered from Muhammad Saleh and empty cartridge is positive.
17. Injured Ali Gul who subsequently died received only single fire arm injury. He further states that kind of bullets never shown, and the question of taking earth from a particular place does not arise, as particular place is a main metal road. He also states that P.W. Abdul Qayoom has not disclosed that injuries on thigh were from which side and presumption can be taken that he has not seen the incident and recovery from place of incident is also only one empty cartridge. In view of aforesaid facts and circumstances, it creates a doubt and benefit of doubt always favours to the accused as such appeal may be allowed and accused be acquitted in the interest of justice.
18. ' Syed Madad Ali Shah learned counsel appearing for accused namely Anwar fully supported to the arguments advanced by the learned counsel for the appellants namely Qalandar Bux and Muhammad Saleh. He further added that there are major contradictions in respect of present case particularly delay, so also in respect of time of incident and even non-mention of crime number.
19. On one hand in bottom of the F.I.R. It has been disclosed that S.H.O. Concerned was out of station, though second version, is that SHO was sleeping and complainant party waited for S.H.O. He further states that incident was taken place on 12-9-2002, but statements under section 161, Cr.P.C., were recorded on 19-9-2002 without any explanation. So far enmity is concerned, he states that ocular and medical evidence are conflicting to each other, as doctor has opined that fire was made at a distance of 6 feet away. He mostly insisted on the ground that investigation conducted in a cognizable offence before registration of the F.I.R. And F.I.R. Not recorded till the time of postmortem and crime weapon of Anwar was not sent for report to the expert, though role alleged against Anwar is ineffective firing. In view of aforesaid facts and circumstances, appellant Anwar be acquitted by awarding him a benefit of doubt. Reliance is placed on cases of Juman v. The State (2003 YLR 927), Barkat Ali v. Muhammad Asif and others (2007 SCM R 1812), Fakir Muhammad and others v. The State (2007 PCr.LJ 1428), Mast Ali v. The State (1976 PCr.LJ 400), Abdullah Khan and 5 others v The State (2008 M LD 535), Falak Sher and another v. The State (2008 PCr.LJ 83 Arshad Mahmood v. The State (2001 YLR 2731 head note ..b..) Ali Sher and othe-s v. The State (2008 SCM R 707) and (199, PCr.LJ 549) respectively.
20. ' On the other hand Mr. Ayaz Hussain Tunio learned counsel for the complainant states that F.I.R.
21. Has been recorded promptly, crime weapons have been recovered from appellants Muhammad Saleh and Anwar. Report is positive in respect of weapon recovered from Muhammad Saleh, so also empty. Appellants have been named in the F.I.R. With their active role and Muhammad Saleh fired upon deceased Ali Gul by a pistol of .12 bore which hit him on his thigh. So far the role of co- accused is concerned is not only ineffective firing, but Complainant Muhammad has deposed that accused Qalandar Bux alias Papoo caught hold collar of the deceased Ali Gul and directed the co- accused to kill deceased Ali Gul and at instigation of accused Qalandar Bux, appellant Muhammad Saleh opened fire arm to deceased Ali Gul, which hit him and accused persons opened fire upon the complainant party. He further states that relationship is no ground, they are natural witnesses.
22. Circumstantial evidence, is available. Version of the complainant has been corroborated by the witnesses plus Medical evidence and recovery so also positive report of the expert. Reliance is placed on cases of Sango and another v. The State (2004 PCr.LJ 1479), Munir Hussain and three others v. The State (2003 SCM R 493), Muhammad Noota v. The State (2003 SCM R 489), Sarfraz alias Shuffa v. The State (2003 SCM R 932), Mazhar Ali v. The State (2005 SCM R 523), Zafarullah and others v. The State and 6 others (2006 SCM R 1454) and Faqir Hussain v. The State (2006 SCM R 1373) respectively. He not only supported to the judgment passed by the trial Court, but he also requested that punishment awarded to the appellants be enhanced in view of evidence available on record.
23. ' Mr. Bahadur Ali Baloch learned State Counsel supported to .The judgment, which according to him, is based upon ocular, circumstantial and medical evidence, recovery of weapon and report of expert is sufficient, on the basis of which accused have been convicted and prosecution has established its case beyond any reasonable doubt.
24. ' Heard learned counsel for the parties as well as to the learned State Counsel at length and with their assistance perused the material available on record. As regards the Point No,1, the prosecution has examined Dr. Munir Ahmed of Civil Hospital, Dadu, wherein, he has categorically opined that after external and internal examination of the deceased he was of the view that injuries are ante-mortem and caused fire arm weapons and death has occurred due to severe haemorrhage resulted by severe injury and shock and cardio respiratory failure and according to his opinion, that injury was sufficient to cause his death in an ordinary course of life. As such it is proved beyond any doubt that Ali Gul died due to unnatural death.
25. ' So far as Point No,2 is concerned, the prosecution examined coniplainant namely Channa who deposed that incident took place on 12-9-2002 at about 10-00 p.m. And he along with deceased Ali Gul, PW Abdul Qayoom and Khan Muhammad were standing near to the house of deceased Ali Gul, where, suddenly accused Muhammad Saleh, Qalandar Bux and Anwar came from northern sides street while challenging the deceased Ali Gul. Accused Qalandar Bux alias Papoo caught hold neck-collar of deceased Ali Gul and directed co-accused to kill him and on instigation Muhammad Saleh opened fire on deceased Ali Gul which hit on his right leg thigh. He further deposed that they tried to save deceased Ali Gul, but accused persons opened fire upon them. They fell down. On commotion of firing several neighbourers were gathered at the place of incident, but accused fled away. They shifted injured Ali Gul to P.S. Dadu, where duty officer A.S.-I. Muhammad Siddiq referred the injured to Civil Hospital Dadu for medical treatment. Medical officer of Civil Hospital Dadu treated injured, but about 12-30 hours of midnight referred Ali Gul injured to Hyderabad, but in the way injured succumbed to his injuries. Complainant party brought dead body to Civil Hospital Dadu and made information to PS Dadu. Letter for postmortem was issued and on the following day at about 6/7 a.m. Received dead body of deceased Ali Gul after post mortem. Thereafter they went to P.S. Dadu and Police personnel informed them that S.H.O. Akbar Chandio was sleeping, therefore, they should wait for him. He further stated that he came in the office at about 10-00. a.m.
26. And narrated whole story to S.H.O. P.S Dadu, but he denied to reduce the same in writing according to his narration. However, at his request S.H.O. Recorded his report at about 11-15 hours as F.I.R.
27. No,115/2002 and obtained his signatures. He further states that he pointed the place of incident to police and identified the accused in Court to be same. PW namely Khan Muhammad deposed that incident took place on 12-9-2002 at about 10-00 p.m., he along with deceased Ali Gul, complainant Muhammad and P.W. Abdul Qayoom were available near their houses, in Shahani Nohalla Dadu, suddenly accused Muhammad Saleh, Qalandar Bux and Anwar came there and challenged deceased Ali Gul. Accused Muhammad Saleh having .12 bore pistol while other two accused having TT pistols. Muhammad Saleh fired upon Ali Gul by keeping on his right thigh, who received injury they tried to save deceased Ali Gul, but other accused opened fire upon them and they fell down.
28. Some of the neighbourers came at the place of incident and accused persons fled away. Police recorded their statements under section 161, Cr.PC and identified appellants/accused to be same in Court. P.W Abdul Qayoom deposed that incident took place on 12-9-2002 at about 10-00 p.m., when they were standing in the street near to their house. His brother Ali Gul deceased, complainant Channa and P.W Khan Muhammad were standing with them, suddenly accused Saleh having pistol of .12 bore, accused Qalandar Bux having TT Pistol and Anwar having TT Pistol came from northern side, while abusing the complainant party, accused Qalandar Bux caught hold neck collar of his brother deceased Ali Gul and abused him by saying that why they have abused them yesterday. Accused Qalandar Bux instigated accused Muhammad Saleh to kill the deceased All Gut. Muhammad Saleh opened fire upon his brother Ali Gul which hit him on his right leg thigh.
29. They all raised cries then all the accused persons made fire upon them. They fell down in order to save themselves. On their cries and commotion of firing several neighbourers came at the place of incident and thereafter accused persons fled away. They found that blood was oozing from thigh of their brother and shifted him to P.S. Dadu on Rikshaw. Police referred them to Civil Hospital, where Doctor directed them to shift the injured to LMC as he was in a serious condition. They wanted to shift the injured from Dadu Hospital to LMC but injured Ali Gul died in the way. Thereafter they returned back to Civil Hospital Dadu and made information to the Police. Police recorded his statement under section 161, Cr.P.C. Accused Muhammad Saleh, Qalandar Bux and Anwar present in the Court are same. The next prosecution witness examined by the prosecution was Nisar Ahmed, who states that on 13-9-2002 he was posted in an investigation branch as A.S.-I.P. And on that day he was duty officer. He received case papers of crime NO.155/2002 for the purpose of further investigation. He inspected the place of incident in presence of Mashirs Zulfiqar Ali and Niaz Hussain on 13-9-2002 under the memo. Situated near the house of complainant in Buth Mohalla Dadu. He secured blood stained earth and 12 bore empty cartridge from the place of incident and produced such memo. As Exh.11-A, which according to him is same, correct and bears his signature. He also seen two sealed parcels in Court which were de-sealed in open Court. One Jar of blood stained earth, which was secured by him from the place of incident and one empty cartridge secured from place of incident. He further deposed that on 16-9-2002 he recorded statements of P.Ws namely Khan Muhammad, Abdul Qayoorn under section 161, Cr.P.0 and subsequently same was transferred to the incharge investigation team Mehar. Prosecution also examined Rasool Bux A.S.-I. Who deposed that on 22-9-2002 he was posted in an investigation Team Mehar as A.S.-I.P.
30. And received case papers of Crime No,155/02 of Police Station, Dadu for further investigation and on same day he went to Dadu from Mehar and arrested accused Muhammad Saleh, Qalandar Bux and Anwar Chandio in presence of Mashirs from New Chowk Dadu. He produced such memo. Of arrest as Exh.12-A, which is same, correct and bears his signature. He further deposed that he brought accused persons at P.S. Mehar and on 24-9-2002 he brought, accused Muhammad Saleh in police lock up Dadu for interrogation. He interrogated the accused Muhammad Saleh, where accused Muhammad Saleh confessed his crime and agreed to produce the crime weapon/pistol.
31. By keeping entry in the record he went to the house of accused Saleh and accused Saleh produced the pistol which was hidden in the eastern side of the room of his house. Mashirnama of recovery was prepared, which he produced as Exh.12 and confirmed to be correct and bears his signatures.
32. He further states that he brought the accused Saleh at P.S Dadu and registered F.I.R. No,163/2002 under section 13-D Arms Ordinance and he produced copy of said F.I.R. At Exh.13-C and confirmed said to be correct. He further deposed that he again brought the accused at P.S. Mehar where he recorded statements on 28-9-2002 of the P.Ws under section 161, Cr.P.C. He interrogated accused Qalandar Bux and Anwar and accused Anwar confessed his crime and agreed to produce the crime weapon/pistol. He brought him at Dadu who led the police to Bukhari graveyard near police Line Dadu and produced the crime weapon/TT Pistol in presence of Mashirs. He prepared such memo. Which produced as Exh.12-D and confirmed to be correct and bears his signatures. Then he brought accused Anwar at P.S. Dadu and registered a separate case under section 13-D as Crime No,165/2002. He produced F.I.R. As Exh.12-E. He also seen case property recovered from accused Anwar to be same. He sent .12 bore pistol country made shot pistol without number and one .12 took empty to Ballistic Expert for its opinion, which he also produced. He also sent blood stained earth of deceased Ali Gul Chana and his Kameez and Shalwar for chemical report which he received and produced. After usual investigation submitted case papers to the S.-I.O. Namely Abdullah Unar for challan. He identified accused Muhammad Saleh, Qalandar Bux and Anwar present in Court to be same. Next witness examined by the prosecution was one Abdullah S.-I. P. /Inspector K.N.Shah, who deposed that on 21-9-2002 he was posted as SIO Mehar. He received case papers along with order of D.P.O. Investigation Dadu for investigation and handed over the case papers to A.S.-I. Rasool Bux Dasti for further investigation. He produced letter of D.P.O. Dated 20-9-2002 with covering letter of A.S.-I. Investigation Team, whereas, on 27-9-2002 A.S.-I. Rasool Bux handed over case papers along with accused persons and case property to him. After approval from his highups, he submitted challan before the Court of law.
33. ' As per record particularly in presence of statement under section 342, Cr.P.C of accused/appellant namely Muhammad Saleh, that Ali Gul deceased having .12 bore pistol and P.Ws dragged him towards their house for the purpose of . Sodomy, Ali Gul received injury that is at least sufficient to prove that Muhammad Saleh was one of the party, so also present at the time of incident and Ali Gul received injury in his person a particular place of incident near the house of complainant party though from his own weapon or caused by Muhammad Saleh accused or somebody else amongst accused as crime weapon is also recovered from Anwar (co-accused) and it has also come in evidence through Abdul Qayoom that accused Qalandar Bux was also with T.T. Pistol at the time of incident. As such burden has not been shifted by Muhammad Saleh thg .He was passing from a particular street and dragged by the deceased and PWs towards their house for the purpose of sodomy. As per record .12 bore pistol is recovered by the police from a room of residential house as pointed out by accused Muhammad Saleh and report of the expert in respect of recovered weapon from him being positive including report of cartridge, so also recovery of pistol from co- accused namely Anwar, can be treated to be a circumstantial evidence. Brother of the complainant has been murdered near their house and accused are not resident of sant area, as such it has been proved that with common intention after preparation they have committed offence and are jointly responsible. Medical treatment provided to the injured on obtaining letter from the police on urgent basis due to the seriousness of the injured, and postmortem also conducted on the basis of letter issued by the police, as injured Ali Gul in a way expired during shifting to LMC Hyderabad, as he was referred due to his serious condition. As per record enmity is not disputed as hard words were exchanged one day before the incident between the parties and that be the motive of the present B incident. So far delay is concerned only delay in recording of the F.I.R., though explained due to the serious condition of the injured, accused cannot be benefited. So far relationship of P.Ws. With the complainant, is not a ground for acquittal, and accused can be punished on the basis of evidence of a single witness if case is established, supported by a circumstantial and medical evidence. So far minor contradictions or irregularities in respect of non-mentioning of crime number, time or date, committed by the police will not brush out the entire evidence available on record, as matters are to be decided on merits and possibility cannot be ruled out that police might win over by the accused party and that be the reason that during an investigation one of the accused namely Qalandar Bux was let off by the police, though subsequently joined on the application of complainant party, as per order of the concerned Magistrate passed on merits. So far the case law relied upon by the learned counsel is concerned, is not similar and identical to the case in hand. Even otherwise, each and every case is to be decided on its own merits. In the present matter treatment was provided on the basis of police letter obtained on urgent basis due to the serious condition of the injured as life of the person is more important instead of to complete a legal formality first, and due to technicalities or any error committed by oversight by the police, illiterate persons who are unaware in respect of such formalities and requirement of law cannot be penalized or punished, particularly in such a heinous offence as stated above. Prosecution case is that deceased Ali Gul received fire arm injury on his thigh, fired by Muhammad Saleh, supported, by medical evidence as Doctor has opined that injury received by the deceased by a fire arm. Under such circumstances, version of the complainant is to be believed, because his version has been fully supported by P.Ws, so also by medical evidence.
34. Under such circumstances, when circumstantial evidence corroborated with medical evidence available it is clear that all the E accused in furtherance of their common intention have committed a murder of deceased Ali Gul Chana by causing him fire injury and commit an offence punishable under sections 302(b) and 34, P.P.C., the appellants are guilty of the offence and rightly convicted by the trial Court on the basis of evidence and nothing has come on record on the basis of which such evidence may not be believed. Therefore, conviction and sentence awarded by the trial Court is maintained and all the appeals are dismissed.