' NISAR HUSSAIN KHAN, J.---Through instant petition, petitioner-complainant has called in question the order of learned Additional Sessions Judge-I, Bannu, dated 17-12-2011, whereby respondents- accused Adnan and Roman sons of Shafqatullah, have been declared as juvenile offenders and complainant's application for summoning Radiologist, as Court witness, has been turned down vide his order dated 3-1-2012 (wrongly mentioned in petition, as 21-11-2011).
2. The resume of the facts forming the background of instant petition is that, on the report of Shafiullah, brother of petitioner-complainant, F.I.R No.62, dated 8-5-2006, was registered against the" respondents under sections 337-F(vi)/337- F(ii), P.P.C., at Police Station Basia Khel District, Bannu. After completion of investigation, case was put in Court' for trial, where, after recording prosecution evidence, respondents were convicted and sentenced by learned trial Court vide his judgment dated 20-6-2011. Both the respondents preferred appeal against their conviction and sentence, before D.I. Khan Bench of this Court, wherein, they raised the plea of being juveniles at the time of occurrence. Their appeal was accepted, conviction and sentence, recorded by the trial Court, were set aside and case was remanded to the Trial Court for determination of age of respondents-accused and consequently for trial, de novo.
3. After remand, respondents-accused were examined by the Medical Board on 11-11-2011 and 14-11- 2011, respectively. As per reports of the Medical Board, respondent Adnan was found above 18 years of age, whereas, according to opinion of the Medical Board, respondent Roman was above 22 years. It appears from the record that both the reports about age of the respondents were not accepted by the Trial Court, due to absence of Orthopedic Surgeon in the Medical Board and .The matter was again, referred to , Chief Exeautivelifi Gul Nawaz Hospital to constitute :fresh Medical Board, hav1ng_ Orthopedic :Surgeon, as its member as well As per direction, of the Trial Court., bOth, Adnan and Roman were {{BLUR PAGE}} 10-Il 2011 by the Medice Board,: consisting of Dental SUrgedn,Assista Professor Orthopedic.); -...And Assistant 0r9fesaar . Radiology. And submitted-theit report,.. According: Which, both - the respondents, :have been 'shown _above__ ,224 years of :age. The learned trial.:Courcapare from - the ;report ofritbe -1401edicab-_,Boa;a4-i relied on the Secondary Sehool Certificates of ,the,sespondents and held-Them juvenile: oit the day occurrence anddeclared.Them. Offenders and ias Mehl were: Ater OVI t ;tibe iried?Underthe Jnweile JusticeeSystem.Otdinartvi)200&::iti.Appeazs?. From theb recOrtI, that Capaplainant;:; filed:,: art 1.;:application,1;:or summoning Radiologist: 4117Cobrt tet4ify, ahont his. Report andOthety ancillary+ matters ow the basis .-ofwhic3a 4egof:;thel respondents :were,-4etertnitied doqtors Thia...aPPlientiomof The.Complainant was also turned down on:3-1-2012; I . '5111, ,; A7A..,. 3c'Learned oukna; sel 0 fat pe ktilt9, p.Er argued that fearnedfr4l t, ,Cpurt; pas abienci,.! of petitioner complainant as well as lies enuAttetir that-. Warped trial, Court has relied upon i.:,10V.1 ltake-Alandil fretitionsaf.S.Choolll Cegiftsjf.Tesponclenis-accusedOSVhicli vicl.M.Agver:Prildeced- by;Themiltiring Theitt- .1.And,.. Sucli,:lias iwtonglyn declared *ern:: as ;juvenile ..:.Effentlets: maigokneCtlIkaAglgarned.:.Ttial..i.Colitt"JhaS-,, erred lit..?
Layt::by4gejecting.:..Applicatioh of f.Orisunmoning of Ahe:iddctori aq/4/ )14 ItrOged1M,.;adopted..Vbyr-LAuwisn s::iiii*Vt-A(IheiguidAtiettIenuaciarai byl-tho:)' in various, pronouncements. ,
4. Lthndd counsel for reSpOndents atinklil defended the impugned order by 'ag4'lif'ljeSpondents, as per School Cttlftee aad report,: of the Medial fidaltt'Vvrt.Teis than tireyvere14,01113,168rafed as juvenile by the 1efte trial Court 4 5 4. , 5 -.D 55: the iv-Viteitilve arguments t of The "leatnttl, einnisir the parties and for the Strut' and haVe--gottekIhratighl:The 'recard4ith their5 assistance.
Peruttatof the record transpires that resparidentS,aetused'Avereearlier -tried' hy.Learae,dtrialt-..CburWi)wherein;,,they .Did not take The plea ,OfT;theirAtendet ,age .-nor objectedlow,theirqriallititthe ordinary court. It. Is the requirement ,of law,ithat,,accused vkconld -.'take such pleat at the ?Defy - initial staged aftertegisttatiottof thexase;:so-that thr,,,Anyetisgating, Officermay collect evidence in support thereof. The respondents have failed, to take this plea dining investigation 6f the, case likewise,, they did not Wather to agitate the Mine at the time of trial.
It was for the .First time, when this plea was taken at the appellate stage and this Court, in the interest of justice. Remanded the case so that justice may not slip out handi;fzat'the test F-4 expeditious disposal and ,speedy justice. The learned trial Conk was ?Bilged to allow the complainant to meaningful participation during the inquiry proceedings about determination of age of the respondents. It aPfseat'S'-it6ii- the impugned order dated 1 12-201 L that the same was pals#A).Tbe back. Of and his "WAS) 4!?-41:14clkqiligAiRA, Wasi:-FaisC4!:01 was turned down. The aiTga741/IIMPv. (Sheikh Ahmed Farooq, J)
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419-,C01.4cirMitktkr7.4144.0M ti-xtSkote4.11RY-t,k4 iiTINSAIKelr11%3q9i41, ,; c.4P: AVY*RimR1,4iy,ISP-OP.: 240 PLI)0994,14PrAWC, 4-94:47.7.7kz,ckW.(010 *lifinSiRkS-AP4, IrciPIIMMtti4,kttg,c1A,the ..FictqFP#Rtic4k age 'appearing at page 78/ of the ibid vox; is reproduced hereinbelow:- WO? 1711; -'..1.1C0f3A?rCIML,NEPPIP411C'F',,` bris s'aPPDMili919f section 7 would be to .41k/a8 lead. Their 31L3a )itIv*Iw.gmiPP),-91..,,c19,clyrwmaryi:=0 accordance wickt,.11wil)Nyjsjiri of Qanun-e-Shahadat Order of 1984, with a right to Pthe.6therfiiiirty to tip:1Z '4-Aist. Theve?Acity'orthegenutheness the same and liken ,tc%,arriNea4 a iknslieti e*Mloit'Intteriti.i itiits6tt" --01,:-A--Iteidte6.1 to witattsci,-thki, dciiieiit is dsitd, it"cie044-1 pNiviwr idiV681'6ai ith iw by tendeliig B Ate salstigl% co-examination to'ffile*Voiffe"*W9? The'lVaffileif trini .1. Thepiccedre elegaivi.e4irtrelfieiff`Wf firobV'ilf411&%1 611i the ibi&i.6iteis-tikt ffitrebylroded'itii irnpngned order which is 1 iblation of the principle set by the ai:4;(68iirt'ilid'hiliiti' it sustainable 1101 illegal,. m
8. For the reasons discussediba , thif.Taiscittkon thR,(14npugned orders are set 4fi.0 Alookaqvistrk) rerna01", rii determination bf age of respondents ac oust& -brnvig4h64(orties1 0(J/cad their evidence, oral as 'melt. a&-clecvnientary ip accordance, with\ the Imoviginns.; otQaiiimozp Shh4datc'::Order.;.'i: 6)84r: v, by, 'it tietlingikl the \FA:lac ityxandi Igenuinenesslaizi the Nsammvin axerdanceAvithqave andythen wideticlw.The tpaitermiwithin-3:14-4pesi00 safiblivo I moitthIci positiyallrualit patties., shalt appearViaelose thziettnoodltriairCixtvt,ma '11-6-2.011.6.f In ImmiP613,3Awl 't,s1 nrit ctite44 Rf--13rF) PN',14-7.1t11,th PicksPeRk.: itEcr74.f4cA-411terdife;liRglitrO NAN9q1r,IPPY,s,..RbmvIlfigninith.Lkilms(1 tEki4 P'Yrt.\-FRAITA, t% tcj.h, TWOefAIINSYsikAtIcRIPIT14 *14 qKqcv:Vfmcill!MqPN cqKrii;rpe it 3t(li4 INT egefli,tyfith4.14,5, knovi2.Fi aka A purmictvi INE4c51,6qxliccs Ailtimia%3 3AQR, ARdt,,ATIfj ____ 9ot3IsAmIskfl.ssifirOg.
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(a) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Accused was neither specifically nominated by the complainant in the F.LR., nor in the course of his statement recorded during the trial---No identification parade was got conducted by the Investigating Officer after the arrest of accused, who was stated to be unknown---Accused was real brother of a co-accused, who was identified by the complainant at the time of occurrence, it was highly improbable, in circumstances, that the complainant could not have identified the accused---Features of accused, who was shown as the unknown accused in the F.I.R., were not mentioned therein--- Person, who was accompanying the complainant at the time of occurrence, and had seen the whole incident, had not been produced by the prosecution as witness during the trial---Another person who had transferred the dead body of the deceased from the scene of the crime to the hospital, had also not been produced as witness.-- Non-production of said two witnesses, who had witnessed the occurrence; and had direct knowledge of the incident had created a serious dent in the prosecution story---Motorcycle used by any accused at time of occurrence was not mentioned--- Out of three accused mentioned in the F.I.R., only two were alleged to have been armed with Kalashnikov-No allegation was levelled in the F.LR. Or the statement of the prosecution witnesses that accused was armed with a pistol/revolver at the ' time of occurrence---Case of two versions-Version which was favourable to accused, was. To be accepted---Presence of accused at time of occurrence had not been established beyond reasonable doubt by t the prosecution--- Accused, in circumstances, could not have been found guilty of causing the "qatl-e-amd" of the deceased along with his co-accused in furtherance of their common intention-Prosecution having failed to establish beyond reasonable doubt that accused had committed "qatl-e-amd" of deceased in furtherance of common intention of all accused, conviction and sentence awarded to accused under S.302(b), P.P.C. By the Trial Court, was set aside---Accused was acquitted of the charge and was released, in circumstances. [pp. 2085, 20871 A, B, D & E Muhammad Akram v. The State 2012 SCM R 440; Mir Hazar v. The State 2002 PCr.LJ 270; Mst.Dur Naz and another v. Yousaf and another 2005 SCM R 1906 and Muhammad Sharif v. The State 2012 SCM R 419 ref. Khan Afsar and 2 others v.
The State 2011 YLR 991; Mir Hazor v. The State 2002 PCr.LJ 270; 2011 PCr.LJ 925 rel.
(b) Penal Code (XLV of 1860)--- ----S. 34---Common intention---Ingredients---Common intention-Generally involved an element of common motive, preplan preparation, and actual commission pursuant to such plan- Main ingredients of S.34, P.P.C., were that a criminal act must be done by several persons; that criminal act must be done to further the common intention of all and that there must be participation of all persons in furtherance of the common intention. [p. 20871 C Muhammad Qahir Shah for Appellant.
Abdul Wasey Tareen, Prosecutor. General Balochistan for the State. {{BLUR PAGE}} Nadir Ali Chalgari for the Complainant.
Date of hearing: 21st May, 2012.
' SHEIKH AHMAD FAROOQ, J.---Through the instant Criminal. Appeal, the appellant/Himmat Ali son of Ghulam Nabi has challenged the judgment dated 25-7-2009, whereby the learned Additional Sessions Judge, Panjgur, has convicted him under section 302(b), P.P.C. And sentenced him to death along with an order for payment of Rs.100,000 as compensation to the legal heirs of the deceased as provided in section 544-A, Cr.P.C. And in default whereof, to further undergo six months' S.1. However, benefit of section 382-B, Cr.P.C, was extended to the convict/ accused.
2. The learned Additional Sessions Judge Panjgur has also sent Murder Reference No. 1-Q of 2010 for confirmation or otherwise of the sentence of death imposed on the appellant Himmat Ali. Both the Criminal Appeal No.33-Q-2009 and the Murder Reference No.1-Q-2010 are being decided through this, single judgment.
3. Succinctly, the prosecution story as narrated in the F.I.R. P/1-A) is that on 20-4-2009, the complainant along with his cousins Basit and Waleed was travelling from Panjgur to Khudabadan in a vehicle/cultus of silver colour which was being driven by Basit. At about 7-00 p.m. The accused along with his absconding companions crossed the vehicle of complainant party while boarded on a vehicle Corolla of black colour and stopped them. The complainant identified two of accused persons as Fateh son of Ghulam Nabi and Amir son of Muhammad Anwar, who were armed with Kalashnikov, the third unknown accused was of middle height, who coujd be identified by the complainant on his appearance. The accused directed the complainant party to get down from the vehicle and hand over the same to them. The accused/Amir and third unknown accused pushed back the complainant and Waleed, while Basit was resisting the accused/Fateh. The complainant party tried to escape, whereupon the accused made two fires: In the meanwhile, accused/Fateh fired a bullet which hit Abdul Basit and he fell down and the accused took away the vehicle, (Cultus) while the dead body of Basit was brought to Hospital in the vehicle of one Muhammad Sharif.
4. After completion of investigation, a report under section 173, Cr.P.C. Was submitted in the learned trial Court for taking cognizance of the offences. Thereafter the accused/present appellant was charged by the learned trial court, to which he did not plead guilty and claimed to be tried.
5. During the trial, the prosecution in order to substantiate its allegations and to prove the charge, produced nine witnesses, in addition to tendering documentary evidence.
6. Statements of P.Ws. Have been discussed in detail in the judgment of the learned trial court.
However, the gist of the material evidence of the prosecution relevant for the decision of the present appeal is being reproduced below:-- ' P.W.11/ Muhammad Yonnis is the complainant. He reiterated the version given in the F.I.R. He is {{BLUR PAGE}} -1-14 YEATOA:14.WRETORTER an hut g cross-exmlned .:byz.....The learned , counsel. For the accused..Despite:41 opportualty to ydo ,so in ,his the coruplainant,::has further :stated that ope ,Ptacie of rau9SFYT.F.PY .494 tilf.Y.AraPp9rted the lac4e490 Liclf11A1411 B454., to the P.V:2/Atichrl'Waheed, chance !It W1rti"W-iSP)Siethedidill0.01041,- was.Fi liitCn 1i P4 bal;' Anipi a ts t-dppel [voirATV -:::aged-,,abotat 29 years andlound the following injuries on hit"tiarsiMV!'
INJURIES ...
(1) Bullet tatitirice ft:dm left side of chest, on upper axea, of heart laterally arid."er1it from back of left side scapula POsterforlr'r i637:
(2) A. Bullet eatitheenktkerallY0iieloki the right k cubitelloirittwintlielboW joinCandiekit oalSatite are RIP:44911: OreSb 000,901 ft .i.:0irJ3e:fi v9J dv. !N%Tettikififttkiat t f)
N 10 Basit due to which he fell 'WV) #TBS ) 1 , tgWAF'1:1S. ; 194abadan. #TBE #TBS Further aepose0 that Fgea , . s,ap Muhammad Shareef 59ehtl?Er -; place of occurrence wlto 41iftes4 rthC dead body of Abdul " hospital. #TBE #TBS and, all the culprits fled from hc eeng4 crime along withyMe..4. #TBE P.W.3/Asmatullah, who was ofq or bus - - -icetirripanyi0g 2/Mdtt1 voiligoT'A the time ,st'c4creii',4ei r. w .2 on alt material po1nfre also identified the aceused/ K1.1311n4t,,, who was ,,p.,rssent, in Me f:g1.1 .k5t.NE:15.::t115:,:,ti,Te::9,:deRPN-.0.g.-sogi)
Al.:to sM.e.TF,147,,c41 boau5t .061:to:131},,W.4/1%4eetti" ltnelf.t'ideiltifieatidti'rtreMa-Of MOtoieyife';'1' whielt iliWiS/DitformstSMatiliddlit'4 had ...,eitairtined dead-46,9f rof Basit FlajittNinhaitaiiradislaeem .61-S:8E iW:i qii; 97, tegai certificate which Was' on record as Exh.13/5-A, .t.11 A I e: ree'oVei$,, (W:?/.51A. Wheiebyllie itiii . 45- " ,ere' en Tntoupo''S's$SS'ioa:'"rti ,..Rf t rOT,r;', ''13-1P1W7/Mtihanittnrid:::11aShiril- is !3 zwitneof,,..Ttle'.,,rizetrietiy.0i) five.; empties of KalashnikOWSMO froth the scene of crime; vide memo n' Itii;:., .'.1 :} . ", '-.'lf_ ' d '4' W-8/Javed:i:!(.1Carinti.! CitiEftabIV-:. griiiltAs4o.374 i,..,theArittiess 'of,-- ikeeti4ery-) .
E Iii montaEtJP1111-AEiti respeet,-.6f black ari if iknOlouritnetoreyelg/CD-70iKJ::::',-;i.:.:41:-yi i't.i.,-,e.t .,1,1)e.j.,..t.i.7!.:-:::,,j 94T ulffn?.411111'ii6 .:.4iF. -!)1-11 10 ,.11.1-.OF ri,`,Wft'g*4-W, Pffic.74)FiVAiy) .c... "*1 .11.11kS He-Sof "That todk..Vn,rion' s.. !I(11!Fi A 11SP?Yi.C.St!g4.99 111 1,1, owfatISiliiiiS 4'14., ilifM[AScTliFY ni#11 ,-1-..,c,iiii5j1IPPIR.),z5u4$4P0.1nOTY.:..v.FicTAJ?Th.f.,E, scene or the crime and the arrest of 2012] - . Himrnat Ali v. State (Sheikh Aliniad FaroOq, J) the accused/Himmat Ali. He also - " recovered one revolver along with four live bullets and a motorcycle 70CD from the house of the deemed'. He produced the site ')- plan -of the place of occurrence Eh. P19-A. He clarified that the post ritortern of Basit Ali wai not- got conducted on the ' request of 'hi S legal heirs. He' placed on record the report Of 'FOrthisic ' Science LaboratorY as ,4 4,1 - 7.;:AfLt,elosUre.Oithee evidence, of the ,PFP.Secn*U, ,,statement, Of "the- ,accusedi prent appellant was ,trecordedi under' sec.Oon 34 Cr, PC. The preSentappellant. Deniedothnfiroseentioniversion andelaimed. Innocence. ;Iiresponse: .cruciaL lusalionlyogarding his involvement in:this, case, he replied as follows:-- Question:, - Why the complainant odged P.LR. Against you?
Answer: "He did not lodge F,I.R. against me"
Question: Why the prosecution' witnesses deposed against you?
Answer: ' ' "FaIielY deposed"
P0 :Wt to say umi sornething,else? innocent. Wrongly implicated.'At the 'time of Rccirrrerice, I was ; at 0qicas4c49Wk 40.1 ''Tlie'acletitedililiiiniiat Ali also go'' recorded'hif-Stkellieetihdifiection 346('*)',1', Cr.P'.C.' and thrOdUced''`thiee defence' witnesses in disproof of the charges/ allegations made against 13:.W.4 and D,W.2 deposed that the aCcusedillitturiat Ali was playifiti cards, With them: on 20-4- 2009ItOrtii3:43044.411: to 8-00/9-00 p.m.' in the 1te134iftlitilant Samar situated- at MawaSh7Clitii4k''TheY denied the involvement Of4tetiiketliffitnfriat Ali in the murder of AbdtiFBiet.
D.W.3., stated that acousediginAlat Ali was arrested on 14,-,2009 at 40,9P1100 a. In. , while he was .Going. a2hatiae after attending a rnar,riage,ceTeny. .Skie denied that the police conducted any Tait! The,house of the accused.On. 1475-2009 and recovered any .Article.
8. Upon conclusion of tfie'fi*, the learned trial court found the 'preent appellant guilty of committing itte!Fatilia: Of the murder of Abdul Bash in ftirtherA0 of common intention, falling within the mischief of seCtion'302(b),Ii:P.d.,-;:anAltfink convicted and sentenced him as mentioned in paragraph No'.1 of this judginent: Being aggrieved by. The judgment. :, dated 254,..,2009; the -appellant; has;challenged:the..Legality and validity of 10,..cPnvictiw.And- sentence through the instant appeal before this Court whereas the learned Additional; Sessions Judge Panignr, has sent, murder reference ft& cfintleinationi of;the5sentence Of death's awardedftel-tbe appellant. .4.,q.4.-r-foe
10. Learned counsel for the a0eil4 contended that the. Prosectrii.99;"?, Miserably failed to provefits- _,caSe. Any shadow of doubt. The cbin-414034; not mentioned the name of the 060 appellant in the F.1. 1-lowe?Fer aftec registration, of case sr.w.4t e. and P.W.. Asinatuhah had nominated {{BLUR PAGE}} 'the appellant in their statements under section 161, Cr.P.C. Before the I.O. He argued that it is a case of two versions, the first version was furnished by the complainant in the shape of F.I.R. As well as in his statement as P.W.1 before the learned trial Court, wherein he nominated two accused while the third accused was unknown, whereas the second version, brought on record by P.W.2/Abdul Waheed and P.W.3/Asmatullah, who are chance witnesses, is totally different from the version of the complainant. According to P.W.2 and P.W.3, the appellant had given Butt blows of Kalashnikov to the deceased but no recovery of Kalashnikov was effected by the police. Furthermore, only two injuries were shown in the MLC Exh.P/5-A, and except those injuries, no marks/signs of any injury or violence was mentioned by the doctor/P.W.5 in his deposition. He contended that the features of unknown accused were not mentioned in the F.I.R., and after the arrest of the appellant, neither the identification parade was conducted nor there is anything on record that the appellant is of middle height. He further argued that according to the prosecution story the most important witness is Waleed but he was not produced as witness before the learned trial Court although he was mentioned as eve-witness in the F.I.R. No role was assigned 'to the appellant regarding firing upon the deceased. The only role attributed to the appellant by P.W.2 and P.W.3 was that he had given some Butt blows of the Kalashnikov to the deceased. He asserted that the principal accused namely Fateh Muhammad, who was assigned the role of firing, is real brother of the present appellant, therefore, the appellant has been falsely implicated in this case. He submitted that the evidence of the prosecution is full of contradictions/discrepancies regarding the number of accused persons as P. W.1/ Muhammad Younis/complainant nominated in the F.I.R. Three accused, namely.Fateh Muhammad, Amir along with an unknown accused, whereas P.W.2/Abdul Waheed and P.W.3/Asmatullah stated about five accused. P.W.2 and P.W.3 claimed that they came to the police station on the same day and got recorded their statements but the I.O. Stated that he nominated the appellant as accused in police Zimni dated 11th May, 2009 whereas F.I.R. Was recorded on 29-4-2009. He maintained that the statements of P.W.2 and P.W.3 are highly improbable. He claimed that the ocular evidence is not only self-contradictory but also did not inspire confidence. He asserted that the impugned judgment is the result of non-reading and misreading, of evidence on record and the conviction recorded thereon cannot be maintained. He pleaded that the appellant may be acquitted.
11. The learned counsel for the appellant in support of his arguments has relied upon the case-law reported as:--
(i) 2012 SCM R 440 (Muhammad Akram v. The State (ii) 2002 PCr.LJ 270 (Quetta) Mir Hazar v. The State) (iii) 2005 SCM R 1906 (Mst.Dur Naz and another v. Yousaf and another and (iv) 2012 SCM R 419 (Muhammad Sharif v. The State).
12. Conversely, the learned counsel for the complainant submitted that two P.Ws. Namely Abdul Waheed/P.W. 2 and Asmatullah/P.W.3 are independent witnesses and they nominated the accused in the instant case. There is no enmity between the complainant and the appellant, therefore, there is no question of false implication of the appellant. Motorcycle was present on the spot at the time of occurrence which was recovered from the house of the appellant. He maintained that the appellant along with his co-accused, with their common intention, committed murder of the deceased, therefore, they all are equally involved in the offence and section 34, P.P.C. Is attracted in the instant case. He further submitted that initially the appellant was not nominated in the F.I.R. But soon after the occurrence, two witnesses namely Abdul Waheed/P.W.2 and Asmatullah/PW.3 nominated the appellant in their statements recorded by the I.O.
13. The Prosecutor-General, appearing for the State, has adopted the arguments advanced by the learned counsel for the complainant and supported the impugned judgment.
14. We have heard the learned counsel for the parties and evaluated the evidence as well as the documents available on the record minutely.
15. Admittedly the present appellant was neither specifically nominated by the complainant in the F.I.R Exh.P/1-A nor during the course of his statement which was recorded as P.W.1 during the trial.
No doubt the complainant in addition to two accused namely Fatah son of Ghulam Nabi and Aamir son of Muhammad Anwar did implicate an unknown person of middle A height but the complainant in the F.I.R. Exh.P/1-A categorically stated that he would identify the unknown accused as and when produced before him. However, it is an admitted fact that no identification parade was got conducted by the Investigating Officer after the arrest of the Convicted accused/present appellant. Moreover, the present appellant is a real brother of a co-accused namely Fatah, who was identified by the complainant at the time of occurrence and as such, it is highly improbable that the complainant could not have identified the present appellant. Strangely, the features of the present appellant, who was shown as an unknown accused in the F.I.R. Were not mentioned in the F.I.R., rather the complainant only alleged that unknown accused was of middle height. The prosecution has not produced any evidence to establish that the present appellant is of an average height. Secondly, Waleed, who was accompanying the complainant at the time of occurrence and had seen the whole incident, has not been produced by the prosecution as a witness during the trial. Similarly, Muhammad Sharif son of Amir Jan, who had transported the dead body of Abdul Basit from the scene of the crime to the hospital has also not been produced as a witness by the prosecution for reasons best known to them. The non-production of aforementioned two witnesses, who had witnessed the occurrence and had direct knowledge of the incident had created a serious dent in the prosecution story. It has been held in the case of Khan Afsar and others v. The State reported in 2011 YLR 991 that withholding of best available evidence and suppression of material facts by the prosecution would lead to the conclusion that the case was one of no evidence.
16. According to F.I.R., the vehicle which was being driven by Abdul - Basit deceased was over taken by a Corolla vehicle, out of which three persons alighted and there is no mention of a motorcycle being used by any accused or present at the time of occurrence. Similarly, out of the three accused mentioned in the F.I.R., only two were alleged to have been armed with {{BLUR PAGE}} iCalaglinikov. There is no allegation in the F.1.12. Or in the statements of the tproseution witnesses that the present appeltajnit was armed with a pistoltrevolyer occurrence. Even in the site O:air.,Eith.l'i9-A'of'ti4e-iinee of occurrence., no -iniii;rioe his been shown. In theSe CutlinStatiCes, the recovery of a piStol and ritotorcyCle from the- present appellant is immaterial and in no way connects hirn With the commission of the alleged offence.
The,-learned trial Courthas'-gived itici of veightageqa the statetnents of13:W:2 I and&TvWca. Homelier, it-is signifitant; that !Rteithee the immAairtant - nor eyeAvitneSSItf the Ocettrtenee naively ',=Waleed rItatt `nominated the.;ipreseni- appellant in," Statements ';4- eesortled tinder and P. W3 for the first tin* introduced 4:41esie Version of the prosecutitin 'heir'' statements which -were I tecOrded:sundeti section-.161; Cr.P.C. 'AS' {well `as' do ltfg theltriall HtifiCe, tt tide twoittersiont,'ott'behalftif the prosecution tusele,aild;thiAtersitt-Whieh is favourable' Id Jliestengeofit'io'beaccepted. In this regard tetlaticeeIs'plated 'On '2002 'Mr. LJ page 270 Etta and 2011 PCr.-LI page 925. In the keient idasey l'Uitilttta position with the istottinent Of and P:W.3, who were iettanceVitnetseS, 'the-vet-skin furnished by idoniplainatiUc, Seems- .To,, be more iplautible;""? cdtivinCitig and near to truth. Even otherwise P.W,2 and P.W.3 -are iO4Wittedly chance witnesses and r their ilia, :have not 'been mentioned in, the as eVe-WitnesSes. Furthermore', and P.W.3 have stated, that the ipreSent appellant along with absconding, laCCuSedf,:attah,and Mujahid was beating, Abdul Basis with the Butt of the ikalaglin4v whereas no 'Kalashnikov has been recovered from the present appellant 'and no injury or Butt blows of the Kalashnikov were found present at the dead body of Abdul Basit deceased either in the inquest report Exh.F. 9/B or in, the statement of Dr.Salahuddin, who had examined dead body of Bash and appeared in the court as P.W.5. The presence of P.W.2. And P.W.3 at the place of occurrence is also not pruved beyond doubt As they were just, passerby and their eyidence is not corroborated by any Independent witness. Surprisingly, the statements of P.W.2 and P.W.3 are also not supported or corroborated by the complainant himself who .Appeared as P.W.1.
18. Furthermore,,, there :arc many contradictions. In_ Me, statements of: the prosecution witnesses,,,,regardirtg the jjetaB of occurrence as well. As ;111441ber, :of :accused persons. 'The complainant nominatedAree accused in the as well as in his itatentent 'as f' whereas- P.V.i!And have iinpliCated 'five - accred The ocular' account' of the occurrence given by proseciiti6i -not corroborated by the medical evidence.
19. Finally, the impugned judgment of the learned trial Court is also not sustainable as the present appellant has been found guilty of an offence which hp committed 'in furtherance of common ,intention and he has been convicted under section 302(B), p.P.0 and sentenced to szl,esth. In the instant case, the charge Was 'framed under section 17(4). Offences ,Against Property (Enforcement of fludood) Ordinance,. 1979, whereas the accused/ ,present appellant was convicted under, seed nn '302(B), .P P . . No doubt, according `to first proviso of section 24 of Offences Against ,Property (Enforeetnentiof ftludood) Ordinance, 1979, the court' is competent to MuharrithAi*aniN. Hileinterfilikr;f6f Revenue (Amin-ud-Din Khan, J) award puniShinent to an offender, ff 'he ha. Committed a attleient offence tinder aii other iaw. Bu "fffe faci remains that tiie involves an pre-plan pre aration acid `actual `'''commission k pursuant to stiehlifir...,Mairi ingredientsof eetikni P.P.C.'are.Ifit a criminal act fast 'he done by several persons;' that ctitttinal act. Mast further the eommofl iniention'Oeshlt :!th4i"e mist fie pirtiOpation. 141-:4all'''''peiiiiWs' in furtherance`' of intention the ingredients Of section .34, fiyiit:c!?Itle-i6taliklaikini. In this case as allegedly` hainef$i Fat I ithiffeV hiVh trained fiii ecii4Sed}."' Inbitfit; the 10i:ilia* .Iiettaht ii80iiriC0114 Oeitf.-; est46lisheifbeyond "iconatile 13iebtifir641.4iict'ki'ilLfi he e411kifil6 6 Vif.6ee With firs co= accused `.In furgtftet itc'e of their r;otlrrflQn fy.DiTt
20. ?He foregoingleasoni, lvef haft arrived at an:4neseapable cone lus ion :that the prosecution l has :...failedlIdAtstabI !_beyond teas onable doubt; that :the.. Present appellant has .1cOttlintitted,,,:nclathe-Itnit!), Of Abdul cBasit in r furtherance, of the Common intention of all I the accused. 'Resultantly .,tite instant appeal s' s alit:wiled ; tholconv iction! Urtder. Section; 3c)2(4.1)iii P.P; C. ',7andli,sentencecmf deadlitZecOrdedbity-, the learned atrial Court against theipresentiappellantvide4Udgment dated M7 4200971s iset:Jasiderron44 acquittedifoft the:1-oharge.t e shad :side released t forthwithvinfrinovirequired,inf, any otherease5F !Murder Referenet No. 2attfli-'1iMw*Ped iViiiiikeaf.Deaiints 14$ etontiiihed: H.& Appeal allowed, {{BLUR PAGE}} )10 Vt,:;\ =0.1.514-eitA ftwo tkitt:Iditt-vcm F,i')
1-$14Laheritlat) izwilti vs;sii:V,)rorA'.), Si fi~ qq,Anii.P-A444/441#6! tookhAtivemztigLisitlittorl,,,' vgisi* ;.4 0+4 .2, ; A7.-lifi$W114FR4i). ix 4 Writ Petition No.3258 of , 20(141131111,' dee idedA4,161114-Unq, AQ11t.-, West Pakistan Land Reventie (XVII 449644, ----S.42---Specific Relief Act (I of 1877), Constitutional petition---Suit for declaration---.11iiitaiddl"e inheritance of deceased attested in,,fitvonr of defendants excluding plaintiff's name, leptheir of decea.Ted and sale of partial land by one, of Levi' heirs---Passinuitteonsent decree by TCtal Court after Setting aside suit initiation and directing revenue authorities to tOtig,afregt inheritwiCilipideCiosed if**40*fffPacia---IV011tnpleinfittation of such dakree by revenue autAoritie$-7- E Order of High Court passed in preVious constltutiqlled: petition *acting revenue antilur4;t4,'14411114111041.;;$14-01 Ax ,:derfite-f attesting:,EitrOdli;inl4fritono.,,nallatiak :a/ deceased 6{kriaVRailW-7041 4.4 le q he including 1: : PC004fr4-441140 9:01; auchori0AlizW1 weiftuct r le X brOP. intpletnont:: snOrdeorea7.-ond,ordar,1441414 Court on application of purchaser-- Validity-High Court after accepting previous constitutional petition had directed revenue authorities to implement such decree in presence of purchaser of suit property from one of legal heirs---High Court set aside impugned order of revenue authorities after declaring same to be illegal and against earlier directions of High Court and directed Revenue Officer to review suit mutation of inheritance and sale mutation in favour of purchaser by excluding share of petitioner, if required; and that if share of legal heirs, who sold suit-land to purchaser, was shorten, then purchaser would have every right to have compensation from such legal heirs. [p. 2090] A & B Raja Muhammad Sohail Iftikhar for Petitioners.
Naveed Khalil Chaudhry, A.A.-G. And M. Sultan Watto for Respondents.
Date of hearing: 16th June, 2011.
' AMIN-UD-DIN KHAN, J.---Through this Writ Petition the petitioners have called in question the validity of orders dated 8-6-2004, 13-8-2002 and Mutation No.472 passed by respondents Nos.1, 2 and 4 respectively and for issuance of direction-to respondents Nos. 3 and 4 to incorporate and implement the order of this court dated 20-1-2000.
2. The brief facts leading to the present writ petition. Are to the effect that Sardar Ali predecessor- in-interest of the petitioners and respondents Nos, 5 to 15 died in the year 1966 leaving 13 Acres of land situated in Chak No.10 Gijyani Teshil Chishtian District Bahawaingar. Sardar Ali deceased had two wives namely Mst. Saman and Mst. Noor Sain. From the wedlock of Mst. Noor Sain he had three sons namely Muhammad Hanif, Abdul Aziz and Hassan Muhammad and two daughters namely Nawab Bibi and Mst. Faizan Bibi whereas from the wedlock of Mst. Saman he had three sons namely Muhammad Hussain, Ghulam Muhammad and Ahmad Din and two daughters namely Mst. Sharfan and -Mst. Charaghan Bibi. Upon the death of Sardar Ali Mutation of Inheritance No.63 was attested on 28-6-1966 in favour of illegal heirs except Muhammad Hanif, Abdul Aziz, Mst.
Nawab Sain and Mst. Faizan Bibi. Lateron all the beneficiaries of the said Mutation No.63 transferred their shares in favour of Muhammad Hussain respondent vide Mutation No. 64 dated 24-7-1966.
That . Thereafter Muhammad Hussain transferred 7 kanals Of land in favour of his mother vide Mutation No.105 dated 27-7-1971. Lateron he again transferred 64 kanals of land in favour of Jan Muhammad respondent and 27 kanals of land in layout of Ghulam Muhammad respondent vide Mutation No.107 dated 27-7-1971 on the same day. That the petitioners filed a civil suit against Mutation No.63 in the court of Civil Judge, Chishtian and a consent decree was passed on 3-11-1971 and the impugned mutation was set aside and it was held that the inheritance of Sardar Ali deceased - should be decided in accordance with Sharia, but some time after this judgment Jan Muhammad respondent No.5 filed an appeal against any other judgment of civil-court in the court of Additional District Judge, Bahawalnagar which was accepted vide judgment dated 27-10-1977.
That according to the judgmont of the trial court-- Mutation of Inheritance No.111 was entered on 26-1-1982 but subsequently it was not attested due to the judgment dated 11-10-1976 of District Judge, Bahawalnagar. That aggrieved from the order dated 26-1-1982 the present petitioners filed Writ Petition No.1131 of 1988 in this court for issuance of direction to set aside the order dated 26-1- 1982 and the mutation of inheritance of Sardar Ali may he sanctioned in favour of the petitioners in terms of decision dated 3-11-1971. That his lordship Mr. Justice Nazir Ahmad Siddique-J, has directed to the Revenue Authorities to incorporate the decree dated 3-11-1971 in Revenue Record in accordance with law vide judgment dated 20-1-2000 passed in Writ Petition No.113 of 1988, however, his lordship held that the rights of Jan Muhammad respondent with regard to the land purchased by him may be protected. That the petitioners submitted an application to Deputy Commissioner! Collector Bahawalnagar to sanction the mutation of inheritance of Sardar Ali in accordance with the direction of this Hon'ble Court who vide his order dated 9-5-2000 allowed the petition and directed the Revenue Authorities to sanction the mutation of inheritance in accordance with the direction of this Court. The Officer did not obey the direction of this court and sanctioned the Mutation No.472 by giving 64 kanals of land including the share of the petitioners.
That aggrieved by this order the petitioners filed an appeal in the court of Assistant Commissioner Sub-Division Chishtian who vide his order dated 2-8-2000 accepted the appeal and directed the Revenue Officer to incorporate/ implement the order of this Court dated 20-1-2000 in toto, both in letter and spirit and attest the mutation of inheritance afresh and directed by this court, vide order dated 2-8-2000. That aggrieved by this order Jan Muhammad respondent No.5 preferred an appeal in the court of E.D.O. (Revenue) Bahawalnagar who vide his impugned judgment dated 13- 8-2002 set aside both the orders dated 9-5-2000 passed by Deputy Commissioner, Bahawalnagar and that of 2-8-2000 passed by Assistant Commissioner/ Collector Chishtian and restored Mutation No. 472 dated 22-5-2000. That aggrieved by the impugned order the present writ petitioners filed a Revision Petition in the Board of Revenue Punjab Lahore who vide his impugned judgment dated 8-6-2004 dismissed the revision of the petitioners vide impugned order dated 8- 6-2004.
3. Learned counsel for the petitioners submit that legal heirs of Sardar Ali are not in dispute between the parties. Now the contest is in-between the petitioners and Jan Muhammad who is purchaser of 64 kanals of land through Mutation No.107 dated 27-7-1971. The legal heirs in no way can be denied from share of inheritance, furthermore when there is already a judgment of this court dated 20-1-2000 in Writ Petition No.1131 of 1988 for sanctioning of inheritance in favour of all the legal heirs.
4. Learned counsel for the respondents submit that it is fourth round of litigation between the parties in the shape of this writ petition. He submits that his client Jan Muhammad is a bona fide purchaser for value from Muhammad Hussain who was recorded owner of that land at that time.
Learned counsel further submit that Muhammad Hussain to appoint Lambardar, with the consent of his' brother and sister the land was transferred in his name, therefore, as per version of respondent Jan Muhammad the petitioner now cannot claim the inheritance. He lastly submits that all the proceedings are based on mala fide.
5. I have heard the learned counsel for the parties at length and gone through the record with their able assistance.
6. It is not disputed that at the time of death Sardar All left six sons and four daughters and two widows; at the time of attestation of inheritance mutation his two sons and two daughters were deprived from inheritance; that on 30-11-1971 a consent decree was passed that all the legal heirs he given their due legal shares and that this court while deciding Writ Petition No.1131 of 1988 on 20- 1-2000 ordered the Revenue Officer to implement decree dated 20-11-1971 in the presence of Jan Muhammad the purchaser of the property from one of the legal heirs.
7. In the light of what has been discussed above, l am of the considered view that orders dated 8- 6-2004 and 13.8-2002 are illegal, without jurisdiction and against the direction of this court hence, are set aside. The Revenue Officer will review Mutation No.63 passed on 28-6-1966 but from further review of Mutation No,107 sanctioned on 27-7-1971 by Muhammad Hussain .In favour of Jan Muhammad the land in the entitlement of Abdul Aziz, Muhammad Hanif Faizan Bibi and Nawab Bibi will he excluded if required. If the entitlement of Jan Muhammad is shorten he will have every right to compensate from Muhammad . Hussain. The writ petition is allowed in the above terms; The parties are left td bear their own costs.