' Zahoor Ahmed Shahwani, J.--Through this single judgment we are going to dispose of four connected matters i.e, Criminal Appeal No, 2/Q of 2013 filed by appellant Ghulam Haider son of Khair Jan, Criminal Appeal No, 3/Q of 2013 filed by appellant Muhammad Ishaque son of Fazal Khan, Criminal Appeal No, 15/Q of 2015 filed by appellant Muhammad Shafa son of Bahar Shah and Criminal Revision No, 1/Q of 2013 filed by complainant Abdul Rehman s/o Madad Khan, as they arise out of one and the same FIR.
' Initially the convicts/appellants Ghulam Haider and Muhammad Ishaque filed their appeals against their conviction as well as the complainant filed revision petition for enhancement in the Hon'ble High Court of Balochistan, Quetta, which were later on transmitted to this Court by High Court of Balochistan due to lack of jurisdiction.
' It is pertinent to mention here that initially one accused namely Ghulam Haider was arrested on 13.04.2010 and he was tried by the learned trial Court and on conclusion of trial, the learned Sessions Judge Kalat Division at Mastung, vide judgment dated 28.10.2010 convicted him under Section 302(b), PPC and sentenced to suffer R.I.
For life imprisonment with fine of Rs, 200,000/- (Rupees two lac) as compensation under Section 544-A, Cr.P.C. Or in default thereof to further suffer six months S.I. Benefit of Section 382-B, Cr.P.C. Was also extended in his favour .
However , the other accused namely Ghulam Fareed, Muhammad Ishaque, Abdul Qayoum, Abdul Manan and Muhammad Shafa were absconder at that time, therefore, it was ordered by the learned trial Court to keep the case file on dormant till their arrest. Ghulam Haider , convict/appellant preferred appeal against his conviction and sentence before the High Court of Balochistan, Quetta. During pendency of said appeal, the absconding accused namely Muhammad Ishaque was arrested on 27.04.201 1. He faced trial and on conclusion of trial vide judgment dated 10.10.201 1 he was convicted under Section 302(b) Qisas & Diyat Ordinance read with Sections 148/149, PPC and sentenced to suffer R.I. For life as Ta'zir with fine of Rs, 100,000/-(rupees one lac) as compensation or in default thereof to suffer S.I. For one year. He was further convicted under Sectio n 392, PPC to suffer RI. For 07 (seven) years with fine of Rs,50,000/- (fifty thousand) or in default thereof to further suffer S.I. For six months. Both the sentences were ordered to run concurrently with benefit of Section 382-B, Cr.P.C. Later on, another absconding accused namely Muhammad Shafa was arrested on 07.11.2012. He also faced trial and at the end vide judgment dated 10.04.2014 he was convicted under Section 302(b), PPC as Ta'zir read with Section 149, PPC and sentenced to life imprisonment i.e, 25 years R.I. In addition to pay Rs,200,000/- (rupees two lac) as compensation under Section 544A, Cr.P.C. The amount of compensation, if recovered, was ordere d to be paid to the legal heirs of deceased Abdul Rahim or in default thereof to further undergo one year S.I. Benefit under Section 382-B, Cr.P.0 was also extended in favour of convict/appellant w .e.f, 07.1 1.2012.
' Complainant Abdul Rehman also filed Criminal Revision No, 1/Q of 2013 against appellant Ghulam Haider wherein he prayed that judgment dated 28.10.2010 passed by the Sessions Judge, Kalat at Mastung may be modified and the life imprisonment awarded to the respondent/convict may be converted to death penalty .
2. Brief facts of the prosecution case are that an FIR No, 05/2010 was lodged on the instance of complainant namely Abdul Rehman on 13.04.2010 in Police Station Khadkoocha through Mura sila alleging therein that his son Abdul Rahim went to his lands on motorcycle CD-70, bearing Registration No, MA-0772 and at about 7.30 p.m.
Complainant received information throug h telephone that his son Abdul Rahim has received bullet injuries by dacoits. On this information he alongwith one Muhammad Hanif immediately reach ed at the spot and saw that his son was lying in injured condition on the road, on asking his son said that he was coming to home on his motor cycle, in the way two Honda motor cycles crossed him, accused Ghulam Haider , Ghulam Fareed both sons of Khair Jan and Muhammad Ishaque riding on one of these motor cycles while accused Abdul Qayyum, Abdul Manan and Muhammad Shafa were riding on another motorcycle. They stopped motorcycles in front of him and signaled him to stop, but he did not stop. On this accused Ghulam Haider fired upon him with kalashnikov , due to firing he received injuries and fell down from motor cycle. On hearing of firing the people were gathered and accused persons escaped away . He further averted that accused Ghulam Haider and his other companions with intention of snatching motor cycle caused injuries to his son. On the basis of the report of complainant FIR No, 05/2010 Offence under Sections 302/34, P.P.C. Registered against Ghulam Haider alongwith absconding accused persons Ghulam Fareed, Muhammad Ishaque, Abdul Qayyum, Abdul Manan and Muhammad Shafa.
3. After registration of the case, accused Ghulam Haider was arrested and complete challan was submitted in the trial Court while the remaining co-accuse d could not be arrested, therefore, proceedings under Sections 87/88, Cr.P.C. Were initiated against them and they were declared proclaimed offenders . The learned trial Court framed charge against the accused Ghulam Haider on 04.06.2010 under Sections 302/34, PPC to which the accused did not plead guilty and claimed trial.
4. To prove its case the prosecution produced seven witnesses in the case of appellant Ghulam Haider namely P.W.-1 Abdul Rehman, the complainant, who narrated the same facts as mentioned in his report Ex. Pa-A. P.W.-2 Jan Muhammad stated that on 13.04.201 0 he, Abdul Rahim and Abdul Khaliq were working at the lands of Abdul Rehman. After offering maghrib prayer they left for home on. Motor cycles, Abdul Rahim was going ahead on his motorcycle, while he and Abdul Khaliq riding on his motor cycle and were follow ing him, when they reached at Dack area, two motor cycles crossed them on one of these motor cycle Ghula m Haider , Ghulam Fareed and Muhammad Ishaque were boarded, while Abdul Qayyum, Muhammad Shafa and Abdul Manan were riding on other motor cycle, mean while they heard gun shots, when they reached near Abdul Rahim they saw Abdul Rahim in injured condition, who told them that Ghulam Haider and his companions signaled him to stop, but he did not stop, Ghulam Haider fired upon him and he receives injuries, further deceased Abdul Rahim told them to chase the culprits and catch them, they chased the accused persons. Accused Ghulam Haider fell down from the motorcycle near Jamiah Masjid, while accused Abdul Manan escaped along with Kalashnikov . Accused Ghulam Haider was caught and handed over to police. P.W.-3 Niaz Muhammad stated that on 14.04.2010, Muhammad Hanif produced blood-stained clothes and blood-stained chadar of deceased to SHO. The SHO took the same through Fard. He produced the Fard of blood-stained clothes and chadar of deceased as Ex.P/3-A. He identified his thumb impression as well as thumb impression of Abdul Ghani over it. He produced bloodstained clothes and blood- stained chadar of deceased as Art/1. He produced sample of seal as Art/2. He produced blood-stained clothes brown in colour of deceases as Art/3. He produced blood-stained chadar of deceased as Ar/4. P.W.-4 Dr. Malik Safdar Hussain MLO, who deposed that on 13.04.2010 at about 11.30 p.m. The dead body of Abdul Rahim was brought by Abdul Baqi (neighbour). On examination of the dead body he found following injuries on his body:--
(i) Entrance wound right lateral lumber region.
(ii) Exit wound umbilical region.
(iii) Intestines and paritonium out.
(iv) Radiology according to X-Ray Repor t No, 9098 dated 14.4.2010 (A) fracture of right radious seen (B) Dilated bowl loops seen.
' Further deposed that due to blood loss, damaged to vital organs of abdomen by shots from fire-arm. P.W.-5 Taj Muhammad, deposed that on 13.04.2010 he was deputed as constable at Tehsil Khadkoocha, on same day he alongwith SHO Shah Nawaz went to the spot at Dock Khadkoocha, where CD motor cycle, and an empty shot and dead body of Abdul Rahim was lying. The SHO took into possession motor cycle and empties through Fard. He produced recovery memo. Of motor cycle and empty as Ex.P/5-A. He identified his signature as well signature of Muhammad Azam over it. He produced CD 70 motor cycle No, MA-0772 as Article-5. He produced parcel of empty as Article-6, sample of seal as Article-7, and one empty shot as Article-8. Thereafter the SHO took into possession motor cycle of deceased through Fard. He and Ustad Murad Ali signed the same. He produced recovery memo. Of Honda Motor Cycle as Ex.P/5-B and identified his signature as well as signature of Murad Ali over it. He produced Honda motor cycle as Article-9. P.W.-6 Muhammad Hanif, who narrated the facts of this case on the same line as narrated by the complainant in his deposition. P.W.-7 Shahnawaz Station House Officer (SHO) is the Investigating Officer, who investigated the case and narrated the facts regarding investigation, on written/report of complainant Abdul Rehman registered FIR No, 5/2010 under Section 17/4 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, he himself started investigation of the case, he alongwith police officials went at the spot, when deceased Abdul Rahim was lying in injured condition. He prepared map of occurrence. He produced map of occurrence as Ex.P/7-A and identified his signature over it, thereafter , injured Abdul Rahim was taken to Civil Hospital Mastung and subsequently the injured was referred to Quetta, for further treatment, accused Ghulam Haider was arrested near Masjid by Police Station Khadkoocha, thereafter he again went at the spot and took in possession motor cycle of injured Abdul Rahim and a empty through Fard. He recorded statement of witnesses u/S. 161, Cr.P.C. And motor cycle of the accused took into possession and recorded statement. Thereafter , the heirs of deceased Abdul Rahim produced blood-stained clothes he took the same into possession through Fard and recorded statement of witnesses u/S. 161, Cr.P.C. Prepared inquest report of deceased and produced same as Ex.P/7-B. During investigation he obtained arrest warrants of absconding accused persons and tried to arrest them but they could not be arrested, on completion of investigation accused Ghulam Haider was shifted to judicial custody on 28.04.2010 and prepared challan and sent to the Court for trial. He produced challan as Ex.P/7-C, and identified his signature over it. He obtained medical certificate of deceased Abdul Rahim and prepared challan and sent to the Court. He produced challan about medical certificate of deceased Abdul Rahim as Ex.P/7-D.
5. In the case of appellant Muhammad Ishaque the prosecution produced eight witnesses, P.W.-1 Abdul Rehman, the complainant, P.W.-2 Jan Muhammad is the witness of last seen, P.W.-3 Muhammad Hanif stated same story as stated by complainant, P.W.-4 Niaz Muha mmad is the recovery witness of blood-stained cloths and chadar Ex.P/4- A , P.W.-5 Taj Muhammad, Constable witness of recovery memo. P.W.-6 Shah Nawaz is the Investigating Officer, P.W.- 7 is Ghulam Haider , Naib Tehsildar , the 2nd Investigating Officer stated that on 27.04.201 1 he arrested accused Muhammad Ishaque, who was absconder and named in the case. On 28.04.201 1 he obtained physical remand of accused. He conducted personal search of the accused and on 09.05.201 1 remanded him to judicial custody and submitted challan Ex.P/7-A against the accused in the competent Court. P.W.-8 is Dr. Malik Safdar Hussain MLO, who examined the dead body of deceased Abdul Rahim.
6. In the case of appellant Muhammad Shafa , to prove its case prosecution produced nine witnesses P.W.-1 Abdul Rehman, the complainant, P.W.-2 Abdul Khaliq , who is witness of the occurrence, P.W.-3 Taj Muhammad, Constable witness of recovery memo, P.W.-4 Muhammad Hanif, P.W.-5 Niaz Muha mmad is the recovery witness of blood-stained cloths and chadar Ex.P/5-A, P.W.-6 is Dr. Malik Safdar Hussain MLO, who examined the dead body of deceased Abdul Rahim, P.W.-7 Shah Nawaz is the Investigating Officer, P.W.-8 is Abdul Saeed Naib Tehsildar is the 2nd Investigating Officer of case who brought on record incomplete challan Ex.P/8-A and P.W.-9 is Ghulam Haider , Naib Tehsildar who is the 3rd I.O. Of the case, who brought on record incomplete challan to the extent of convicted accused Mohammad lshaque as Ex.P/9-A.
7. It may be pertinent to mention here that most of the witnesses are same in all the above-mentioned three cases, but the statements of the witnesses were recorded with different number . However , they gave almost the same statements during the separate trial of each accused.
8. On close of prosecution evidence the statement of convicts/appellants Were recorded under Section 342, Cr.P.C.
Wherein they denied the allegation leveled against them by prosecution. All the convict/appellants neither got recorded statements on oath as envisa ged wider Section 340(2), Cr.P.C. Nor produced any witness in their defence. At the close of trial learned trial Court vide impugned judgment convicted and sentenced the convict/appellants in the manner as ment ioned above. Being aggrieved and dissat isfied from the judgment passed by the learned trial Court dated 28.10.2010, 10.10.201 1 and 10.04.2014. The appellants filed the instant appeals separately .
9. Learned counsel for convict/appellants contended that convicts/appellants are innocent and have committed no offence but they have involved falsely; the prosecution failed to produce any independent witness and all the witnesses examined by prosecution are close relatives, therefore their evidence cannot be relied upon being interested ones; the prosecution evidence suffers from material contradictions and discrepancies and witnesses have not confirmed each other presenc e at the place of incident; the statement of deceased is not a dying declaration as it was not recorded by police nor before the doctor; neither anything has been robbed nor any crime weapon has been recovered from posses sion/pointation of appellants; and prosecution has been unable to prove its case against appellants beyond shadow of doubt, but the learned trial Court without proper appreciation of evidence convicted and sentenced the appellants which are not sustainable in the eye of law .
10. On the other hand learned counsel for complainant assisted by learned Additional Prosecutor General argued that prosecution witnesses in their evidence have fully implicated the appellants and corroborated each other with regard to material points; no material contradiction/discrepancy appeared in the deposition of prosecution witnesses as to be fatal to the case of prosecution; one of the appellant namely Ghulam Haider was apprehended after chase, while the remaining appellants remained fugitive of law for a long time, the ocular account is corroborated by medical and circumstantial evidence and prosecution has fully established its case against appellants and the trial Court has rightly convicted and sentenced the appellants.
11. We have heard the learned counsel for appellants, as well as learned Additional Prosecutor General assisted by learned counsel for complainant and have gone through the record.
12. Perusal of the record reveals that none of the witnesses including the complainant has seen the appellants committing the offence, however , complainant Abdul Rehman, P.W. Jan Muhammad, P.W. Muhammad Hanif and P.W. Abdul Khaliq have claimed that when they reached at the place of incident they found Abdul Rahim in injured condition and injured told them that appellants and absconding accused who were on two (2) motor cycles signaled him to stop but when he did not stop, the appellants Ghulam Haider fired at Abdul Rahim with kalashnikov and caused him injuries. According to evidence of P.W. Jan Muhammad and P.W. Abdul Khaliq that on 13.04.2010, they alongwith Abdul Rahim (deceased) were working at lands of injured Abdul Rahim. After finishing work, after maghrib Abdul Rahim on his motorcycle while PWs on another motorcycle left for their homes. Abdul Rahim was going ahead to them on his motor cycle while PWs Jan Muhammad and Abdul Khaliq riding 'On other motorcycle were behind him. When they reached at Dock area, two (2) motorcycles crossed them. On one motorcycle Ghulam Haider , Ghulam Fareed and Muhammad Ishaque were riding while on other motorcycle Abdul Qayyum, Abdul Manan and Muhammad Shafa were riding According to said PWs they heard a fire report and when reached near Abdul Rahim he was lying in injured condition, who told them that appellants alongwith absconding accused persons signaled him to stop, but on his non stopping he was fired at by Ghulam Haider with kalashnikov as a result of which he sustained injuries. Both the PWs stated that they chased the culprits. The appellant Ghulam Haider lost control over the motorcycle and fell down near Jamiah Masjid and was over powered while accused/appellant Abdul Manan made his escape good. The remaining accused persons also fled away from the place of occurrence.
13. While the complainant Abdul Rehman and P.W. Muhammad Hanif have deposed that they came to know about the incident and reached at the spot where found Abdul Rahim in injured condition and Abdul Rahim told that he was on his way to home on motorcycle when appellants and absconding accused persons riding on two (2) motorcycles came in front of him and signaled him to stop, the accused Ghulam Haider fired at him with kalashnikov and caused him injuries. According to complainant that accused persons had attempted to rob motorcycle from his son Abdul Rahim. According to witnesses that injured Abdul Rahim later on succumbed to his injuries at hospital. It is crystal clear from the evidence available on record rather an admitted fact that none of the witnesses is the eye-witness of the incident who have seen the accused persons while firing at Abdul Rahim (deceased) and causing him injuries with kalashnikov or attempting to robe motorcycle from deceased, however it has already been stated here in above that the private PWs including complainant have stated that Abdul Rahim who was lying in injured condition at the place of incident informed them that the accused persons signaled him to stop but on his non stopping one of the accused Ghulam Haider (appellant) fired at him and caused him injuries with kalashnikov . The learned trial Court considering the statement of injured Abdul Rahim a dying declaration and made it a base for conviction of the appellants. Now it is to be seen whether the injured made any statement before complainant and other witnesses and the statement of injured can be termed as dying declaration or otherwise.
Careful perusal of the depositions of complainant Abdul Rehman and P.W. Muhammad Hanif shows that material discrepancies exist in their, depositions. As complainant deposed that he received information through telephone about the incident. While replying a question he stated that P.W. Muhammad Hanif was present in his house as a guest whom he took to place of incident; he further replied that when he and P.W. Muhammad Hanif reached at the place of occurrence, the police and other people were already present. Whereas P.W. Mohammad Hanif stated that he was present his hose when he was informed about the incident. In cross-examination he replied that Abdul Rehman (complainant) came to his house wherefrom they both left for place of occurrence. P.W., answering one of the questions replied that after ten (10) minutes of their arrival at place of incident police had reached there. Both the complainant and P.W. Muhammad Hanif during the course of cross-examination were unable to tell name of any other person who were present at the place of incident. From the above material discrepancies appeared in the depositions of complainant and PW Muhammad Hanif, the presence of complainant and P.W. Muhammad Hanif at the place of occurrence stands highly doubtful. According to complainant and other private witnesses that injured Abdul Rahim had told them that accused persons had signaled him to stop but when he did not stop one of the accused Ghulam Haider (appellant) caused him injuries with kalashnikov.
14. The learned trial Court in view of the depositions of witnesses declared the statement of injured/deceased Abdul Rahim a dying declaration. From the depositions of afore mentioned PWs the injured Abdul Rahim was able to make a statement about the incident. It is not disputed that the deceased was rushed to hospital in injured condition and later on he succumbed to his injuries there. If injured was in a condition to make statement before other persons regarding incident at the place of occurrence, and police was also present at the spot, then the question arises why the police did not record the statement (Dying declaration) of injured Abdul Rahim. Even the police could register a case on statement of injured against the accused persons. But nothing in the depositions of police witnesses has come on record that injured Abdul Rahim made any such statement at the spot. As P.W.-6 Shahnawaz Risaldar levies 1" investigation officer in his deposition stated that when he arrived at the place of occurrence he found Abdul Rahim in injured condition: The witnesses i.e, complainant, P.W.-Muhammad Hanif, Jan Muhammad and Abdul Khaliq have not confirmed/corroborated each other's prese nce at the place of occurrence.
In such circumstances any such statement (Dying declaration) by deceased before the said P.Ws. is highly doubtful and not established. Though there is no bar on oral dying declaration before a private person but in the case in hand the very statement by deceased before afore-mentioned P.Ws. is highly doubtful and cannot be believed and relied upon. (Relience is place on authorities reported as Mst. Zahida Bibi vs. The State (2006 PLD 255), Tahir Khan vs. The State ( 2011 SCMR 646 ) and,Hameed Gul vs. Tahir and 2 others ( 2006 SCMR 1628 ).
15. The prosecution witnesses Jan Muhammad and Abdul Khaliq have tried /attempted to substantiate that they saw the accused persons riding on two (2) motorcycles and after receiving information from injured they chased the accused/persons and over powered one of the accused Ghulam Haider appellant, who had lost control over the motorcycle and fell down, while accused Abdul Manan made his escape good with kalashnikov . According to PWs other accused had fled away from the place of occurrence. It is evident from the evidence of PW Jan Muhammad and Abdul Khaliq that three accused/per sons were riding on each motorcycle. The chasing of accused Ghulam Haider by PWs also stands highly doubtful as both the PWs at one place stated that three (3) accused persons were riding on each motorcycle, while at the same breath stated that accused Ghulam Haider fell down, who was over powered, while accused Abdul Maria n fled away with Kalashnikov . The depositions of both the P.Ws. is silent about the third accused who was riding on motorcycle with Ghulam Haider and Abdul Manan. If the third accused namely Muhammad Ishaque was not riding motorcycle with accused Ghulam Haider and Abdul Manan, then what happened with the third accused and how he made his escape good. It has also come in the depositions of PWs Jan Muhammad and Abdul Khaliq that they were chasing the accused when reached near Jamiah Masjid; the people had gathered and accused Ghul am Haider (appellant) was over powere d and his motorcycle was also taken into possession. While accused Abdul Manan made his escape good alongwith kalashnikov . The said PWs were on motorcycle while accused Abdul Manan was on foot and witnesses with the help of people of Muhallan could easily overpowered the accused Abdul Manan but no efforts has been made. Both the PWs were also not consistent about name of accused riding on each motorcycle. As at one place both the PWs said that Ghulam Haider , Ghulam Fareod and Muhammad Ishaque were riding on one motorcycle, while remaining accused were on second motorcycle, whereas at other place stated that Ghulam Haider and Abdul Manan were on one motorcycle and Ghulam Haider fell down and over powered near Masjid while accused Abdul Manan fled away with Kalashnikov , which creates doubt with respect to the story narrated by said witnesses. Even no other witness has been examined in this connection to support the story introduced by PWs. The presence of PWs Jan Muhammad and Abdul Khaliq at the place of occur rence as last seen witnesses is also doubtful. (Reliance is placed on Judgment reported as Imran alias Dully and another vs. The State (2015 SCMR 1 and Khalid alias Khalidi and 3 others vs. The State ( 2012 SCMR 321 ;.
16. Apart from that none of the PWs except complainant has stated/deposed that accused had attempted to rob the motorcycle from deceased. Keeping in view the number of accused persons and also having Kalashnikov they could easily snatch motorcycle from deceased and other PWs but not robbing/snatching motorcycle from deceased by accused also creates doubt to the case of prosecution.
17. So far as the recovery of crime empty from the place of occurrence and blood-stained clothes of deceased are concerned, the same too cannot prove the case of prosecution because neither any crime weapon has been recovered from possession of appellant nor any Chemical Expert Report in respect of blood-stained clothes obtained/ produced. The Investigating Officer could have collected/secured bloodstained earth from the place of occurrence when he could secure bloodstained clothes and etc. As far as the ocular account is concerned the same is full of material contradiction/discrepancies besides getting no corroboration by independent evidence. As all the private witnesses produced by prosecution are interested witnesses besides being close relatives and no independent witness has been associated to corroborate the case of prosecution despite availability. Reliance is place on judgment 2010 SCMR page 1772 (Sher Khan vs. The State.) The evidence collected and led by prosecution against appellants suffers from material contradictions/discrepancies besides getting no independent corroboration which cannot be relied upon and not safe to make it a base for conviction of appellants. The benefit of doubt could have been extended in favour of the appellants but the learned trial Court convicted and sentenced the appellants, which are not tenable in the eye of law.
18. In view of what has been stated here in above, the Criminal Appeal No, 2/Q of 2013 filed by appellant Ghulam Haider son of Khair Jan, Criminal Appeal No, 3/Q of 2013 filed by appellant Muhammad Ishaque son of Fazal Khan, Criminal Appeal No, 15/Q of 2015 filed by appellant Muhammad Shafa son of Bahar Shah are accepted and the impugned judgments dated 28.10.2010, 10.10.201 1 and 10.04.2014, whereby the appellants have been convicted and sentenced are set aside, resultantly the appellants are acquitted of the charge. They be set at liberty if not required in any other case.
' Therefore, the Criminal Revision No, 1/Q of 2013 filed by petitioner Abdul Rehman having no merits is dismissed.