1. MRS, SYEDA TAHIRA SAFDAR, J.--The appellants preferred instant appeal, being aggrieved of judgment dated 28-9-2009 of Additional Sessions Judge, Killa Saifullah, whereby both being found guilty of the offences thus convicted, with prayer for setting aside of conviction order, and their acquittal of the charge. It is contention of the appellants, that the trial court has not appreciated the evidence properly, nor considered the facts apparent from record. Further, the ocular evidence is in conflict with the medical evidence, which has been ignored by the trial Court. Furthermore, the disclosure and pointation of place of occurrence have no relevance, as per Articles 38, 39 and 40 of Qanun-e-, Shahadat Order 1984. It is further contended that there: are' dishonest improvements and contradictions in statements of prosecution witnesses, which are not considered by the trial Court. Furthermore, the allegation of Qatl-e-amd is not established against appellant Abdul Zahir, despite the same the trial court while completely relying on the version taken by the prosecution awarded punishment to him for the offence, which is neither just, nor legal.
2. It is case of the prosecution, according to F.I.R. No,4 of 2009, Police Station Killa Saifullah, registered on 17-2-2009 at 10-30 a.m., it has been reported by one Abdul Sattar that nearly at 9-00 a.m. his brothers namely Juma Gul and Murad Khan were working in their fields, when Muhammad son of Abdullah Khan, Abdul Khaliq and Abdul Ghaffar sons of Aaloo, Khan Muhammad son of Char Shambay, Alam khan son of Naseer and Abdul Zahir son of Naseer arrived there, armed with rods and spades and started beating his brothers. Meanwhile, on having glace of occasion he (complainant) reached at the site, on his hue and cry Salam Mullahzai, Alaf son of Sardar Khan, Gula Khan Batozai and other residents of locality also reached at the site and get his brothers out of assailants claw, while his brothers were seriously injured, who were taken to hospital by vehicle of Abdullah Yahyia Zai, but on their way to Quetta one of his brothers namely Juma Gul succumbed to the injuries, whereupon they returned. After registration of F.I.R., the complainant Abdul Sattar filed his affidavit on 18-2-2009 repeating the contents of F.I.R. with further assertions, that the nominated persons had two tractors with them, further when he (complainant) reached near the site of incident he saw that accused Abdul Zahir was holding spade with which he hit Juma Gul on his head, while Khan Muhammad was in possession of rod, he started beating Juma Gul with it, while Abdul Khaliq also had a rod, who attacked Murad Khan. It is further asserted that, remaining three nominated persons were also assaulted his brothers with rods. Investigation was carried out on reporting of the incident, all the nominated persons except Alam Khan were arrested on 15-5- 2009 and 18-5-2009, case was challaned. Charge was framed on 9-6-2009, as all the .arrested accused persons denied the same and claimed trial, therefore, evidence was called. In order to establish the case ten witnesses were produced by the prosecution, while in defence only accused Khan Muhammad and Abdul Zahir got recorded their statements on oath and produced one witness namely Said Muhammad. On completion of evidence, the trial court while arriving to the conclusion that prosecution failed to establish charge against accused Khan Muhammad Ghaffar and Abdul Ghani, thus acquitted them of the charge. As far as accused Abdul Khalaq is concerned, being found him guilty for the offence, thus convicted him under sections 337-A(i) and 337-F(i), P.P.C.,, while sentenced him to suffer imprisonment for a period of one, year as Tazir for each offence and also to pay, an amount of Rs,10,000 as Daman to victim Murad Khan. As far as accused Abdul Zahir is concerned, he being found guilty, for the offence of murder punishable under section 302(c), P.P.C., thus awarded him sentence to suffer rigorous imprisonment for a period of 25-years, while he .(Abdul Zahir) is also directed to pay Diyat amount to legal heirs of deceased Juma Gul. Feeling aggrieved of the same both the convicts preferred instant appeal with prayer for setting aside of impugned judgment and their acquittal of the charge on grounds as mentioned hereinabove.
3. Learned counsel for the parties are heard, while record is perused. The learned counsel for the appellants contended that there are clear contradictions and variations in statements of the prosecution witnesses, which are not considered by the trial court. It is his contention that cause of death is not mentioned in Medico Legal Certificate Exh.P/7-C, while no head injury is mentioned therein. Further, statement of P.W.3 is contradictory to prosecution witness No,7 the Doctor.
4. Furthermore, , there was delay of three days in recording statement of P.W.2. Muhammad Yousaf, who otherwise was a chance witness. It is contended that the remaining witnesses are closely related to complainant, thus being interested witnesses, less reliance can be made on their evidence. Furthermore', the persons, who were asserted to be present at , site at time of occurrence, were not reduced before the court during course of trial, an adverse inference can easily be drawn from the same. According to learned counsel for appellants the prosecution has failed to bring home the charge against the appellants, as such they are liable to be acquitted.
5. Furthermore, the trial court has made an error while convicting them. He relied on judgments in cases tilted as Zafar Hayat v. The State reported in 1995 SCMR page-896, Muhammad Altaf and 5 others v. The State reported in 2002 SCMR page-189 and Ali Asghar v. The State reported in 2004 PCr.LJ page-13'08. In reply learned Additional Prosecutor-General. contended that the appellants were specifically nominated in F.I.R., while P.W.1, P.W.2 and P.W.3 fully supported the prosecution case being the eye-witnesses. She further contended that there are only minor contradictions , in statements of the witnesses, which are of no consideration.. further, existence of enmity is also an admitted fact. She further contended that as the appellants had taken plea of Alibi, therefore, they were under legal requirement to establish' the same. She prayed for dismissal of appeal while upholding the conviction Order.
6. As per prosecution case the incident occurred at 9-00 a.m.. on 17-2-2009, while reported' on same day at 10-30 a.m. by Abdul Sattar, brother of both Junta Gut, the deceased, and Murad Khan, the injured. While reporting the matter, complainant Abdul Sattar specifically nominated the accused persons namely Muhammad Ghani, Khan Muhammad, Abdul Ghaffar, Abdul Khaliq, Abdul Zahir and Alain Khan. Except accused Alam Khan, the remaining five were arrested, thereby faced trial.
7. The trial court through impugned judgment convicted Abdul Zahir and Abdul Khalaq founding them guilty of the offences, while acquitted the remaining accused persons for lack of evidence.
8. Feeling aggrieved of the conviction order instant appeal has been filed by the appellants/convicts.
9. As per impugned , judgment the trial court arrived .to the conclusion that accused Abdul Zahir (appellant No,1) with knowledge caused such injury to the victim (Juma Gul), which can cause death in ordinary course of nature, thus committed offence under section 302(c) P.P.C., thereby sentenced him to suffer rigorous imprisonment for a period of 25-years, and, also to pay Diyat amount to legal heirs of the deceased. As far as accused Abdul Khalaq (appellant No,2) is concerned, he is convicted' only for the offence of causing hurt to Murad Khan, punishable under sections 337-A(i) and 337-F(i), P.P.C., thereby sentenced to suffer imprisonment for a period of one . year for each offence as Tazir and also to pay an amount of Rs,10,000 as Daman to the injured.
10. As. per record the matter was I reported without any delay, with specific A nomination of the culprits. The complainant Abdul Sattar, who appeared before the court as prosecution witness No,1 (P.W,1), while reporting the matter through Exh.P/1-A alleged that his brothers namely Juma Gul and Murad Khan were working in their fields, while nominated persons Muhammad Ghani, Abdul Khalak, Abdul Ghaffar, Khan Muhammad,-Alam Khan and Abdul Zahir aimed with rods and spades arrived there and attacked his brothers, while he along with other persons including Salam . Jalalzai, Alaf and Gulla Khan reached at the ' site, and got escaped his brothers from their claws, due to serious nature of injures his brothers were referred to Quetta, but on their way, Juma Gul died due to the injuries. The complainant on very second day of incident filed his affidavit as his second statement, which is placed on record as Exh.P/1-B. In the same though he nominated same persons, but with addition that the said persons had two tractors with them, further, when he (complainant P.W.1) reached at site he saw accused Abdul Zahir (appellant No,1) having spade in his hand, who attacked his brother Juma Gul with it, hit on his (victim) head, on the other hand accused Khan Muhammad beat Juma Gul with rod{{URDU TEXT}}.(J.,ci ). Further, Abdul Khaliq had rod in his hand, who attacked Murad Khan and; started beating him with the same, while. They Were also three nominated persons were also beating his brothers with rods ({{URDU TEXT}} While appearing before the court and recording his statement as P.W.1, Abdul Sattar, asserted the same facts with addition that the accused persons were ploughing the fields of his brother with tractors. Except specifying the act done by each of the accused persons, there is no improvement in statement of the complainant (P.W.1). It seems somehow natural that two of his brothers were injured, out of whom, one died due to the injuries sustained in the incident. The occurrence was of broad- daylight, white there was specific nomination of accused persons at first instance, the report was lodged without any delay, therefore, there is less chance of false implication and deliberation on part of the complainant.
11. As far as eye-witnesses of the occasion are concerned, the complainant though named three persons out of the persons who reached at the site on his hue and cry, allegedly they were Abdul Salam, Alafand Ghmrac Khan, though these persons are cited as witnesses in challan, but none of them were produced before the court during course of trial. Rather one Muhammad Yousaf got recorded his statement as .P:W., claiming him to be eye-witness of the. occasion. As per his statement on 17-2-2009 at 9-00 a.m. he was proceeding towards bazar on road, when he saw fighting on land of Juma Gul. At said occasion Zahir had spade in his hand, while Khan Muhammad had rod in his hand, the remaining three accused persons Abdul Khalaq, Alain Khan and Abdul Ghaffar also had rods in their hands. He further stated that Zahir gave a blow at head of Juma Gul with spade, while Khan Muhammad hit him (Juma Gul) with rod, further accused Abdul Khalaq attacked Murad Khan with rod, meanwhile Abdul Salam reached there and separated them with help of other persons. Though this witness asserted to witness the incident while proceeding on his way, he can be deemed to be a witness by chance, therefore, his evidence is required to be seen with more caution and care. The I complainant in his court statement though asserted arriving of Muhammad Yousaf at the site, on his call of help, at time of incident with other persons with further assertion that he (Muhammad Yousaf) along with other persons escaped his brothers from claws of accused persons. But contrary to the same Muhammad Yousaf (P.W.2) in his statement only asserted that he saw the assailants, assaulting Juma Gul and Murad Khan, while Abdul Salam and others rescued them, but he asserted to accompany them to hospital. The other eyewitness of the incident is the injured Murad Khan, who appeared before the court as P.W.3. In his statement, he specifically named the accused persons including the appellants, who entered their lands and started working there with tractors, on their objections the accused persons attacked them. He stated that Abdul Zahir gave a blow on head of Juma Gul with spade, while accused Khan Muhammad attacked him (Juma Gul) with rod. When he (witness) reached there, Khalaq (appellant No,2) hit him with rod on his head, due to which he became unconscious. He further stated that he remained in hospital for two days. His later part statement is contrary to Medico Legal Certificate Exh.P/7-B and statement of P.W.7. As the Doctor, while recording his statement as P.W.7, deposed that Murad Khan was conscious when he was brought to hospital and he was not admitted in the hospital. But as per Medico Legal Certificate four injuries of grievous nature are recorded with no head injury.
12. From whole set of evidence the unnatural death of Juma Gul is established. D The medical evidence supported the fact. As per Medical Officer Dr. Jamal Abdul Nsir, P.W.7, the cause of death of Juma Gul was injury No,1, as mentioned in Medico Legal Certificate Exh.P/7-A. He further deposed that there was only one injury noted on body of deceased Juma Gul. Medico Legal Certificate Exh.P/7-A also shows only one injury at left temporal region of Juma Gul. As per P.W.7 the bleeding from nose was also due to Injury No,1 i,e, head injury. As far as Medico Legal Certificate to the extent of injured Murad Khan is concerned, which is present on record as Exh.P/7-B, it disclose four injuries on body of the injured, that too described as grievous in nature, while the nature of weapon is noted as hard. Though P.W.3 Murad Khan asserted that he had been hit on his head by Khalaq with wooden rod, but no such injury is noted in the certificate Exh.P/7-B.
13. A part from the same it is to be noted that medical evidence only establish the prosecution case to the extent of unnatural death of Juma Gul and sustaining of injuries on body of Murad Khan, in addition to the same, it is the prosecution who has to establish that the injuries were caused to the deceased and the injured by the accused persons including the present appellants. There is specific nomination of accused persons in First Information Report, while it is also an admitted position that the accused persons, though residents of same area, remained absconded, while got arrested on 15-5-2009 and 18-5-2009, that is after lapse of three months, that too without any explanation about their absence from the' area. For the very first time accused Abdul Zahir and Khan Muhammad, while recording their statements on oath raised contention that at time of incident they were at Quetta, but asserted to reach .the area at night after occurrence of incident. It was their statement that on 16-2-2009 they (Abdul Zahir and Khan Muhammad) were in Police Plaza. Quetta and were shopping when they met with one Said Muhammad, who invited them for dinner, they spent the night at house of Said Muhammad, while on next date after completing their shopping, they returned to Killa Saifullah in wagon, and reached there at 7-00 or 7-15 p.m. The said person namely Said Muhammad also appeared as defence witness No,1 and got recorded his statement. He stated that on 16-2-2009 Khan Muhammad and Abdul Zahir met him at Police Plaza, as it was evening, he offered them meal, whereupon they companies him and spent night at his house and on next morning at 10-00 O'clock they left his hawse. These two accused persons, including appellant NO.1, took plea of Alibi, thus the burden was on them to establish the same. It is to be noted that this was never suggested to the witnesses appearing on behalf of prosecution.
14. Rather the only plea taken by the accused persons was to the effect that the complainant and his men attacked the accused persons with spades and rods, while Juma Gul and Murad Khan were injured by act their,own men during course of fighting. Their (accused persons) presence at the site of incident at relevant time was never denied, nor disputed. No such defence plea was taken, nor suggested to the witnesses during course of their cross-examination. The burden was completely on the accused persons to establish the same, but they failed to discharge it causing hurt. The alleged recovery of crime weapon is also rightly disbelieved by the trial Court Further more, the trial court fixed liability on accused Abdul Zahir and Abdul Khalaq/appellants for the offences alleged, which in light of the evidence on record is established as discussed hereinabove, as such no interference is required to be made in the same. The only blow to the temporal region of Juma Gul was fatal, thus caused his death. This blow was attributed to accused Abdul Zahir/ appellant No,l.
15. P.W.1,P.W.2 and P.W.3 asserted the same and their statements to said extent are not shaken during course of cross-examination; therefore, it cannot be disbelieved. At this stage the point, which requires consideration is nature of the offence made out against appellant Abdul Zahir and what would be the quantum of sentence. As far as accused . Abdul .Khalaq/appellant No,2 is concerned, he is only awarded sentence of one year imprisonment each for the offences punishable under sections 337-A(i) and 337-F(i), P.P.C. While he had to pay an amount of Rs,10,000 to the victim/injured Murad Khan as Daman. In view of evidence brought on record no interference is required in findings f the trial court. to extent of appellant No,2 Abdul Khalaq. But as far as punishment to appellant No,1 Abdul Zahir is concerned, the trial court while finding him guilty of offence of murder . i,e, Qatl-e-amd of The trial Court discussed the Juma Gui awarded him punishment under arrived to the right .conclusion that the death of Juma Gul was unnatural, further, material present on record properly andsection 302(c), P.P.C. to suffer rigorous imprisonment for a period of 25 years and also liable to pay the Diyat amount to legal heirs of victim Juma Gul. But keeping in the offence under section 149, P.P.C. is not view the material present on record, there made out, as the prosecution failed to seems that a sudden fight held between the establish the existence of common object parties, which resulted in death of one between the accused persons for person. No common intention premeditation commission of offence of murder and for killing or causing injury has.-been established, the accused persons were not armed with any sort of weapon, rather they were allegedly in possession of the spade and rods, which were described as crime weapon. Spade is admittedly a tool used in cultivation of land.
16. Thus in the circumstances offence under section 302(c), P.P.C. is not made out, rather the act is covered by section 315, P.P.C., which states as under:--
315. Qatl Shibh-i-amd.---Whoever intent to cause harm to the body or mind of any person causes the death of that or of any other person by means of a weapon or an act which in the ordinary course of nature is not likely to cause death is said to commit Qatl Shibh-i-amd."
17. The punishment of the offence is provided under section 316, P.P.C., which states as under:-- "316. Punishment for Qatl Shibh-i-amd.---Whoever commits Qatl Shibh-i-amd shall be liable to Diyat and may also be punished with imprisonment of either description for a term which may extend to twenty five years as Tazir."
18. The prosecution has failed to bring on record any evidence that accused Abdul Zahir/appellant No-.1 with intention gave blow to victim Juma Gul in order to kill him. Rather, as per given circumstances the act happened during scuffle between the parties.
19. Keeping in view the above discussion, the trial court has wrongly held that the accused having knowledge that with the said blow the death could be caused in ordinary course of nature, thereby convicted accused Abdul Zahir/appellant No,1 under section 302(c), P.P.C. Thus in the circumstances as discussed hereinabove offence under section 315. P.P.C. is made out against accused Abdul Zahir/appellant. Therefore, keeping in view the provisions of section 316 P.P.C. he (Abdul Zahir) is sentenced to suffer rigorous imprisonment for a period of 14-years as Tazir, while he is liable to pay Diyat to the. legal heirs of deceased Juma Gul.
20. The judgment of the trial Court dated 28-9-2009 is hereby upheld with above modification.