' SHAHID ANWAR BAJWA, J.--- F.I.R No.79 of 2003 was recorded at Police Station, Moro, on 12-7-2003 at 0810 for an incident alleged to have occurred about four hours earlier. Complainant stated that his nephew, the deceased Ali Akbar had matrimonial affairs with Allah Rakhio's family on which Dhani Bux and others were annoyed. On day of the incident at dawn time the deceased Ali Akbar with Allah Rakhio and Inayatullah was going towards open land for the purpose of ploughing when on the way four persons which were Anwar, Rustam, Dhani Bux and Mir Muhammad accosted them. After declaring their intention of murdering Ali Akbar, it is alleged that Anwar and Rustam directly fired from gun upon Ali Akbar. Ali Akbar raised cries and fell down and Dhani Bux and Mir Muhammad started giving him hatchet, blows. The commotion attracted villagers and the culprits, escaped. It is stated in the F.I.R. That deceased Ali Akbar had sustained injuries on right side of chest, left side of shoulder and neck and he had hatchet injuries on left side of face near mouth, left side of neck, one injury on right arm upon elbow, one injury upon right hand, one wound near the right ear, one hatchet wound on right side lip and one injury on right side of neck.
2. At the trial P.W.1 was complainant Sain Bux, P.W.2 was Inayat Ullah, P.W.3 was Allah Rakhio, P.W.4 was Inspector Nooruddin who recorded F.I.R., P.W.5 was Dr. Mumtaz Ali, P.W.6 was Nizamuddin, mashir of inquest, recovery of clothes, recovery of earth and empties and arrest of Dhani Bux and Ghulam Mustafa and also recovery of hatchet, P.W.7 was I.O. Nazar Hussain, mashir of recovery of gun, P.W.8 was Moharram and P.W.9 was tapedar Ghulam Hyder. Thereafter, statement under section 342, Cr.P.C. Was recorded. All of them, stated that they wanted to produce two witnesses in defence but produced only Haji Haroon and gave up the other witness and finally vide the impugned judgment dated 3-9-2007, appellants Rustam, Dhani Bux, Mir Muhammad and Ghulam Mustafa were convicted under section 302(b), P.P.C. And were ordered to suffer imprisoilment for life and to pay fine of Rs.50,000 as compensation to legal- heirs of deceased. In case of default in payment of fine, he was ordered to suffer further imprisonment for six months. Benefit of section 382-B, Cr.P.C. Was also extended. However, case against absconding accused Anwar was kept on dormant file till he is arrested and produced before Court.
3. Mr. Deewan Dhan Raj, learned counsel for the appellant Mir Muhammad in Criminal Appeal No.S- 81 of 2007 made the following submissions:--
(i) No motive has been attributed to the appellant and no recovery has taken place from him.
Inayatullah and Allah Rakhio have named him in Court but have not been named him in his statement under section 161, Cr.P.C.
(ii) Doctor has stated that deceased was identified by Haji Nizamuddin and Muhammad Ismail and not by any of the witnesses.
(iii) There are contradictions in the evidence while the complainant stated that they were living in separate houses, P.W. Stated that they were living in the same courtyard.
(iv) Learned counsel relied upon Jahangir v. State (1999 PCr.LJ 1254), Khadim Hussain v. State (2010 YLR 2919), Muhammad Rafique v. State (2010 SCMR 385) and Muhammad Akram v. State (2009 SCMR 230).
4. Mr. Ghulam Murtaza Korai, learned counsel for other three appellants in Criminal Jail Appeal No.S-67 of 2007 made the following submissions:--
(a) Appellant Ghulam Mustafa is not named in the F.I.R. And since the complainant thereafter changed his version, his integrity has become doubtful.
(b) Statement of Allah Rakhio and Inayatullah were recorded after 26 days and they in their statements implicated only Rustam and Ghulam Mustafa but when they appeared in Court they improved and implicated the other three.
(c) No Roznamcha entry has been produced by I.O. To establish that he visited the place of incident. This creates doubt that he ever visited the place of incident.
(d) There is three days delay in sending the sample for chemical examination.. The cartridge and the gun were sent together to the Ballistic Expert and therefore his, report is doubtful..
(e) There is no evidence as to how many fires were shot.
5. Mr. Zulfiqar Ali Jatoi, learned Deputy Prosecutor-General made the following submissions:-
(i) It is a case of joint family and therefore motive was there.
(ii) There was no recovery from Mir Muhammad but it is not fatal to the case of prosecution.
(iii) When the evidence is recorded after two years minor contradictions cannot be material.
(iv) 'Under Article 140 of the Qanun-e Shahadat if a contradiction is sought with a previous statement, the previous statement has to be - brought to attention of the witness but no such exercise was carried out by the appellant.
(v) There is no contradiction in ocular and medical evidence.
(vi) Though F.I.R is silent about Ghulam Mustafa but he was named in statement under section 161, Cr.P.C.
(vii) All the five empties match with the gun recovered at the pointation of Rustam.
6. I have considered the submissions made by the learned counsel and have also gone through the record as well as the case-law cited at the bar.
7. In the medical evidence following injuries were stated:--
(i) Incised wound 10 cm x 3 cm x bone deep on right side of neck posteriorly.
(ii) Incised wound 8 cm x 4 cm x bone deep on right occipital region.
(iii) Incised wound 10 cm x 3 cm x muscle deep at right side of neck.
(iv) Incised wound 4 cm x 4 cm x muscle deep on right upper lip.
(v) Incised wound 7 cm x 4 cm x oral cavity deep on right cheek.
(vi) Three lacerated punctured wounds at the distance of about 3 cm from each other measuring 3/4 cm x half cm x muscle deep on anterior superior side of left shoulder running upward and laterally margins inverted, charring present. Wound of entrance.
(vii) Four lacerated punctured wounds about 3/4 cm 1/2 x cm x muscle deep on left side of neck anterior laterally at the distance of about 2 cm x 1/2 cm from each others margins inverted charring present wound of entrance.
(viii) Seven lacerated punctured wounds about 3/4 cm x 1/2 cm x cavity deep on right side of chest below nipple at the distance of about 2-1/2 cm from each other margins inverted, charring present.
Wound of entrance.
(ix) Incised wound 7 cm x 4 cm x muscle deep on lower half of right forearm medially.
(x) Incised wound 8 cm x 4 cm x bone deep on lower part of right forearm posteriorly. Fracture of radius ulna.
(xi)- Incised wound .6 cm x 4 cm x bone - deep on back of right hand fracture of fourth and fifth metacarpal.
(xii) Incised wound 8 cm x 3 cm x spinal cord deep on back of neck. Fracture of seventh cervical bone.
8. A perusal of the above injuries indicates that nine of the injuries are in the nature of incised wounds by a sharp cutting weapon. Out of nine injuries six are on head, face and neck and three are on various parts of right arm and hand. Thus, the six injuries are on vital parts of the body. There are three injuries in the nature of lacerated punctured wounds; all three being wounds of entry; one is on neck, the other is on chest and the third is on shoulder. Neck and chest are certainly vital organs. According to the doctor cause of death was due to injuries on vital part of the body.
Medical evidence also states that bladder was empty which corroborates with the time of the alleged incident (dawn time) when in the normal course of life, in this part of the world, people relieve themselves before going forth for their daily chores. It may also be pointed out that two of the firearm injuries had charring around the wound of entrance and the doctor stated in his evidence that in his opinion the fire took place from a distance of about four feet. This is the medical part of the evidence.
9. In the F.I.R, against Rustam and Anwar, it is alleged that they were armed with guns and against Dhani Bux and Mir Muhammad, it is alleged that they were armed with hatchets. Ghulam Mustafa's name does not appear in the F.I.R. In the F.I.R. Is stated that first Anwar and Rustam fired which resulted in Ali Akbar's falling down and then Dhani Bux and Mir Muhammad gave him hatchet blows. This is the gist of allegation in the F.I.R.
10. I will take up the case against appellant Mir Muhammad first. As stated above, it is stated in the F.I.R. That he was armed with a hatchet and it is alleged in the F.I.R. That he gave, repeated hatchet blows to prone lying Ali Akbar. P.W. I stated the time to he 4-30 a.m. P.W.2, in his evidence, stated the time to be 4-30 p.m. P.W.3 Allah Rakhio also stated the time to be 4-30 a.m. In cross- examinations time was stated as daylight time. The incident occurred in the month of July and 4- 30 a.m. Is the time when the first rays of the A sun are about to or just start trickling to the earth.
Therefore, contention of the learned counsel for the appellant that there is contradiction is without any foundation as IA far as this aspect is concerned.
11. Regarding role of Mir Muhammad, P.W.1 stated that when Ali Akbar fell down, Mir Mohammad along with two others (to the aspect of second other I will revert later) caused hatchet injuries to deceased Ali Akbar. He identified the accused person' present in Court. P.W.2 gave exactly the same evidence as did P.W.3. Learned counsel submitted that in statement under section 161, Cr.P.C., the witnesses had not named the appellant Mir Muhammad. However, this was successfully met by the learned D.P.-G. When he argued that under Article 140 of the Qanun-e-Shahadat, if it is intended to contradict witness by any previous writing, his attention must be called to those parts of it which are to be used for the purpose of contradicting him. Article 140 of the Qanun-e- Shahadat Order provides as under:-- "140. Cross-examination as to previous statements to writing. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, writing or reduced into writing, and relevant to matters in question without such writing being shown to him, or being proved; but, if it is intended to contract him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."
12. Reference, in this regard, can be made to PLD 1966 Dacca 144, PLD 1964 Dacca 566, PLD 1969 Lahore 259, PLD 1969 Peshawar 1, PLD 1967 Karachi 242 and 1988 CLC 1408. Even otherwise, F.I.R. And evidence of all the three witnesses in the court are consistent as far as appellant Mir Muhammad is concerned.
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13. Next contention of the learned counsel for the appellant was that P.W.1 in his evidence stated that he along with the deceased and P:W. Inayat and Allah Rakhio proceeded to their land and in his cross-examination he stated that Allah Rakhio was son of his paternal aunt and was residing in a village which is at a distance of half km from the place of incident. He further stated that Allah Rakhio and Inayat are not co-sharers with him but he was just having with him to help him. P.W.2 also stated that he is not a co-sharer but he accompanied the complainant as his free labourer.
Allah Rakhio stated that he was co-sharer with the complainant as also was P.W. Inayat. He further stated that he was residing in the same courtyard with the complainant. According to learned counsel, these two contradictions i.e. Whether they were co-sharers or not and where Allah Rakhio resides create doubt. In my opinion, the contention is misconceived. All the three witnesses have been unanimous on the fact that they were going to labour, they have been unanimous on the fact that what was the time and they are unanimous as to the fact as to what happened. Therefore, these minor contradictions are of no consequence.
14. Learned counsel also pointed out that there is contradiction as to how the complainant left their houses. P.W.1 stated that he alone went to the house of Allah Rakhio and Inayat Ali where they were waiting and he joined them. In the F.I.R., it has been stated that they were going together to the fields.. P.W.2 Inayat also stated that they were going together to the fields and P.W. Allah Rakhio also stated that they were going together to the fields. He stated that they had made a program for work in the evening time and settled the programs in his house. I do not see any such contradiction in these statements which can cause a halo of doubt around story of the prosecution.
15. Learned counsel next submitted that no motive has been attributed to Mir Muhammad. Now in the F.I.R., it is clearly stated that the motive was a matrimonial affair of Ali Akbar with Allah Rakhio Bughio. All the, other accused are from Bughio tribe as is also of Mir Muhammad. Commonality of tribe and tribal affinity are not unknown to be reason for a. Grudge. Besides, it is not "a requirement of law that the motive be proved in order to establish guilt or innocence. As far as non-recovery from Mir Muhammad is concerned, recovery is only a corroborative piece of evidence. Factum of recovery or non-recovery cannot be decisive and more so in this case when, the weapon alleged to be with Mir Muhammad was a hatchet. Similarly, contention, of learned counsel was that the deceased was identified by Nizamuddin and Muhammad Ismail and not by any of the witnesses. It is not case of the appellant that Ali Akbar did not die on that particular day. Therefore, who identified him at the hospital is of no consequence. Learned counsel relied upon Jahangir's case (supra) where some of the accused were convicted while others were acquitted by giving them benefit of doubt. In Khadim Hussain's and Muhammad Rafique's cases (supra) it was observed that improvements made during the trial would create a serious doubt. In the present case, as discussed above, no material improvement has been made as far as role of Mir Muhammad is' concerned. In Muhammad Akram's case (supra) it was observed that even a single doubt is sufficient for giving benefit of doubt. There can be no cavil with these propositions but as far as case of appellant Mir Muhammad is concerned, the prosecution has successfully established F beyond any reasonable -doubt that the appellant Mir Muhammad is guilty of giving repeated hatchet blows to Ali Akbar when he was lying prone after having been injured by fire-arms and injuries caused by hatchet were included in the causes on his death. Consequently, Criminal.
Appeal No.81 of 2007 is dismissed.
16. .Coming to the case of appellant Dhani Bux, his role is identical to that of Mir Muhammad: the allegation is the same; the weapon is the same; the injuries are the same on same part of the body. Contention of Mr. Korai, in addition to the contentions put forward by Mr. Valicha, was that Roznamcha entry which the I.O. Claimed that he visited place of incident had not been produced and according to learned counsel, this created doubt. The entire cross-examination of the I.O.
(P.W.7) has been in respect of recovery of the gun allegedly used by the appellant Rustam.
Therefore, contention of the learned counsel in respect of non-production of Roznamcha entry is of no consequence because had it been so, the counsel for the accused would have specifically put a question in this regard and then confronted the I.O. With demand of producing of Roznamcha entry but that was not done. Therefore, as far as appellant Dhani Bux is concerned, this appeal is dismissed.
17. Coming to the case of appellant Rustam, allegation against him is in respect F of firing from his gun. A gun was recovered on 8-8-2003 when Rustam led the Police party to his house and from there he produced a gun with four live cartridges. The gun and the cartridges were sent to the forensic science laboratory and they reported that empty cartridges were fired from the gun recovered. In the cross-examination of the I.O. He was asked various questions about this recovery and he stated that he did not remember the name or number of the private vehicle in which he .Went for recovery. He further stated that place of recovery is situated at a call's distance from residence of Rustam but it is not a common way, although everybody could pass through it. When the statements of P.Ws. 1, 2 and 3 are read with the medical evidence, the case against appellant Rustam is proved beyond reasonable doubt. Recovery of the gun is a corroborative piece of evidence. Although learned counsel for appellant contended that the gun and the cartridges were sent together to the Ballistic Expert which should not have been done but as observed above, this is only a corroborative piece of evidence. The Supreme Court in the case of Muhammad Hanif v. The State, PLD 1993 SC 895 observed as under:- "The expert's evidence may it be, medical or that, of Ballistic Expert, is entirely in the nature of confirmatory explanatory of direct or other circumstantial evidence, but if there is direct evidence as in the instant case, which is definite, trustworthy, the confirmatory evidence is not of much signifycance. In any case, it cannot outweigh the direct evidence."
18. Contention of the learned counsel for the appellant that there is no evidence, as to how many fires were. Shot is also not, material in the circumstances. It is in the evidence that two persons fired. It is also in evidence that three injuries were found on body of the deceased and it is also in evidence that five empties were recovered. In the presence of all these pieces of evidence, it is of no consequence that the witnesses had not stated number of fires.
19. Result of the above discussion is that appeal of Rustam is also dismissed.
20. Lastly, coming to the case of Ghulam Mustafa, in the F.I.R., four accused persons are named.
Anwar, H Rustam, Dhati Bux and Mir Muhammad, two armed with guns and two armed with hatchets. Ghulam. Mustafa is not named in the F.I.R. When P.W.1 appeared in the witness box, he named Ghulam Mustafa as the one who was also armed with hatchet and who also caused injuries. In his cross-examination, he stated that he had given the name of Ghulam Mustafa at the time of lodging F.I.R. But he did not know that Ghulam Mustafa's name was not mentioned in the F.I.R.
21. P.W.1 also named Ghulam Mustafa as one of the five to be present and P.W.3 Allah Rakhio also named Ghulam Mustafa as one of those present. When statement of P.W.4 Nooruddin, the Police Inspector who recorded the F.I.R., was recorded, he stated regarding registration of the F.I.R. And did not state anything about inclusion or exclusion of name of Ghulam Mustafa. In his cross- examination, he stated as under: "It is a fact that name of accused Ghulam Mustafa is not mentioned in F.I.R. It is the fact that at the time of registration of F.I.R., complainant was conscious and in proper senses. The contents of F.I.R.
Were read over to him and after accepting it, he put his signature on it."
22. It was available to the prosecution to get the witness dedlared as hostile and ask him question regarding not including name of Ghulam Mustafa in the F.I.R. Though it is claimed that blood- stained hatchet was recovered at the pointation of Ghulam Mustafa but as observed above, recovery is merely a corroborative piece of evidence and as has been held by the Supreme Court in Muhammad Akram's J case (supra) if a single doubt is created, then benefit should be given to accused person. Exact observations of the Supreme Court are as under:-- "It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."
23. In view of non-inclusion of name of Ghulam Mustafa in the F.I.R. And non-asking of any question and no statement by P.W.4 in his evidence regarding this aspect a 'doubt is certainly created.
Consequently, this appeal is allowed in respect of appellant Ghulam Mustafa. He is ordered to be released forthwith if not required in any other case.
24. Result of the above discussion is that Criminal Appeal No.81 of 2007 is dismissed and Criminal Appeal No.67 of 2007 is dismissed in respect of appellant Dhani Bux and Rustam and is allowed in respect of appellant Ghulam Mustafa, Ghulam Mustafa is ordered to be released forthwith if not required in any other case.