SH. NAJAM UL HASAN, J.---Through this judgment we shall dispose of Cr. Appeal No.19-Q-2014 (Ubaid v. The State) and Cr. Murder Reference No.2-Q-2014 (The State v. Ubaid) as both these matters are out come of the same judgment dated 21.7.2011 passed by learned Sessions Judge, Turbat, in case FIR No.13/2010, dated 2.9.2010, registered under Section 17(4) Offences Against Property (Enforcement of Hudood) Ordinance, 1979, at Levies Thana Turbat, District Kech, whereby the appellant was convicted and sentenced as under:-- i) Under section 302(b), P.P.C. To DEATH on two counts and also to pay Rs.200,000/- which was to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Or in default thereof to further undergo S.I for six months. ii) Under section 324, P.P.C. To suffer R.I for seven years and to pay a fine of Rs.10,000/- or in default to further undergo S.I. For two months. iii) Under section 337-F(v), P.P.C. To suffer four years R.I. And to pay a fine of Rs.20,000/- as Daman payable to the victim Shambay, in default of further undergo simple imprisonment till payment of Daman iv) Under section 337-F(vi), P.P.C. To suffer five years' R.I and to pay an amount of Rs.30,000/- as Daman payable to the victim Jada, in default to further undergo simple imprisonment till payment of Daman. v) Under section 337-A(v), P.P.C. To suffer ten years' RI and to pay a fine of Rs.219774/45 as Arsh payable to the victim Naz Bibi D/o Brahim, in default to further undergo simple imprisonment till payment of Arsh. vi) Under section 337-F(ii), P.P.C. To suffer two years' RI and to pay an amount of Rs 10 000/- as Daman payable to the victim Zaheer Khan in default to further undergo simple imprisonment till payment of Daman. vii) Under section 337-F(i) P.P.C. To suffer one year RI and to pay a fine of Rs.5000/- as Daman payable to the victim Zabad Son of Darya Khan, in default to further undergo simple imprisonment till payment of Daman.
' It was also ordered that the sentences shall run concurrently.
2. The appellant Ubaid filed an appeal against his conviction and sentence before the Hon'ble High Court of Baluchistan on 26.07.2011. Murder Reference under section 374, Cr.P.C. Was also sent by the trial court to the High Court of Baluchistan. As charge was framed under section 17(4) read with section (2) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 so vide order dated 29.05.2014 both these matters were sent to this Court by the Hon'ble High Court of Balochistan on 16.06.2014 even the appellant filed an Appeal No.19/Q of 2014 in this Court against the impugned judgment whereby he was convicted and sentenced by the learned Sessions Judge Turbat. The murder reference sent by the Hon'ble High Court of Balochistan was numbered as 2/Q of 2014 in this Court.
3. The brief prosecution case as narrated in FIR registered on the written application of Lal Bakhsh complainant (P.W.5) is that on 1.9.2010 he along with his family members, relatives and others were on their way on a bus to Turbat from Karachi for 'ziarat' of Koh-e-Murad in Balochistan. On their way on 2.9.2010 at about 4.00 p.m. They reached the mountainous area of Pasni-Turbat, when they were stopped by four armed culprits. Two of them armed with Kalashnikov were present on the nearby mountain while the other two with muffled faces were on the road. One of them was having a Kalashnikov with him whereas the other was empty handed. They entered the bus and on gun point tried to snatch the ornaments, cash and other valuable things from the complainant, his family members and other passengers. On resistance, the accused having Kalashnikov with him made firing which resulted in injuries to Wahag, Shambay, P.W.9, Jada, Allah Bakhsh, Abdul Rehman, Mst. Naz Bibi, Habib, Zabad Zaheer Khan, Hani and Wahid Bakhsh. The passengers continued their struggle and were successful in apprehending both the accused along with his Kalashnikov. At this stage indiscriminate firing was made by the two accused who were present on nearby mountain. In result of their firing the accused who was empty handed and was present near the bus received serious injuries. On seeing this the accused who were on the mountain escaped from the site of occurrence. The name of the accused apprehended with Kalashnikov was disclosed as Ubaidullah son of Khudadad (the appellant). The name of the other accused who received fire arm injuries at the hand of his own co-accused was disclosed as Abdul Hameed son of Khudadad. The complainant, the injured along with both apprehended accused and the other passengers were on their way to hospital when the injured Mst.Hani, Wahid Bakhsh and accused Abdul Hameed succumbed to their injuries and died.
4. After receiving information the Tehsildar Turbat along with other Levies officials came and met them on the way to hospital. The apprehended accused along with Kalashnikov and the dead body of the, other, accused was handed over to them. Later on the complainant Lal Bakhsh, P.W.5 submitted written application to Tehsildar which was sent to the police station on which the FIR No. 13/2010 was registered against the appellant and his co-accused under section 17(4) Offences Against Property (Enforcement of Hudood) Ordinance, 1979, at Levies Thana Turbat, District Kech.
5. Just after reaching hospital at 6.45 p.m. Dr. Noor Zaman,P.W.7 medically examined injured Wahag, Shambay, P.W.9 Jada, Allah Baldish,' Abdul Rehman, Naz Bibi, Zaheer Khan, Habibullah, Zabad and found fire arm injuries on their bodies. Their medico legal reports were prepared and later on handed over to the I.O. The doctor also examined the dead bodies of Mst.Hani and Wahid Baldish and found bullet wounds on their bodies which are declared as their cause of death. The doctor declared the duration of injuries as fresh and weapon used as fire arm. Even their medical reports were prepared and later on handed over to the I.O.
6. The 1.0. Arrested Ubaid accused/ appellant who was having some injuries on his body so he got him medically examined through Dr.Attaullah,P.W.6 on the same day i.e. 2.9.2010 at 8.20 p.m. The doctor found lacerated wound on the left forearm and there were multiple bruises on the whole back of chest with different size and red colour. According to the doctor the nature of injuries was simple. The dead body of co-accused Abdul Hameed who died on the way to the hospital was also examined. The doctor, found an entrance bullet wound on the right side, just below the right eye orbit and exist wound was seen in the left frontal bone of skull. There was also a two centimeter open wound at the back of head, depth of wound was about two centimeter and bone was also broken. Medical report was prepared and handed over to the I.O.
7. After registration of FIR and during investigation the I.O. Took into possession Kalashnikov along with 11 live bullets statedly taken from the appellant Ubaid during the occurrence by the complainant vide recovery memo duly attested by the witnesses. The I.O. Inspected the place of occurrence in presence of witnesses and took into possession from nearby the place of occurrence 18 crime empties of 7.62 MM Rifle along with three missed cartridges and sealed them into parcel.
He also took a black colour muffler used by the accused during the occurrence. A burnt motorcycle Irani made was found at the place of occurrence was taken into possession through the recovery memo duly attested by the witnesses. Site plan was prepared on the instruction of the witnesses.
During investigation Ubaid accused/appellant admitted the occurrence and rather named the two other accused who were present on the mountain as Shoukat and Salahuddin. The I.O. Searched for them and ultimately they were declared proclaimed offenders. After completing the investigation challan was submitted in the court and after fulfilling the legal requirement charge was framed against the appellant who pleaded not guilty and faced the trial.
5(sic). During the trial the prosecution produced ten witnesses to prove the ocular account, the recoveries and the medical evidence. Positive report of Fire Arm Expert was also produced. The medical evidence was produced through P.W.6 and P.W.7. Dr. Attaullah M.O., D.H.Q. Hospital, Turbat appeared as P.W.6. He at the instance of Tehsildar medically examined the accused/appellant Ubaid on the day of occurrence i.e. On 2.9.2010 at 8.20 p.m. And found three injuries caused by blunt mean on his person. The injuries were fresh. At the same time he examined the dead body of Abdul Hameed co-accused and found fire arm injury and a blunt weapon injury on his person. The injuries were found fresh and were the cause of death. He verified their medico-legal certificates prepared by him which were exhibited. Dr. Noor Zaman appeared as P.W.7. He was M.O. Of DHQ Hospital Turbat and on the day of occurrence at 6.45 p.m he medically examined nine injured persons of this case and also examined the two dead bodies of the victim and found fire arm injuries on their persons. The injuries were fresh. He verified the Medico-legal certificate prepared by him in this respect which were duly exhibited. P.Ws. 2, 3 and 4 are the recovery witnesses. P.W.2 was the witness of production of weapon by the complainant to the 1.0. Which was taken from the accused Ubaid during the occurrence. P.W.3 is a recovery witness of clothes and other articles of the injured and deceased produced by the doctors. P.W.4 is the recovery witness of 18 crime empties, three missed cartridges, blood stained earth and the burnt motorcycle along with the black mufler used by the accused to cover his face during the occurrence. P.W.10 is the 1.0. And he found the appellant fully involved in this case during the investigation and prepared the challan.
6(sic). The ocular account has been produced through P.Ws 1, 5, 8 and 9. P.W.5 is the complainant whereas P.W.9 is the injured witness of this occurrence. P.W.1 and P.W.5 have categorically stated that the appellant entered the bus and firing took place inside the bus in which the injured and the deceased received fire arm injury at the hand of the appellant Ubaid whereas the deceased accused received injuries with the firing made by their co-accused who were on the mountain. On the other hand P.W.8 and P.W.9 took a different stance and stated that the firing was made on the bus by the accused who were present on the mountain in result of which the injured and the deceased received fire arm injuries. The appellant Ubaid was assigned the role of causing fire arm injury to Jada injured, whereas the co-accused Hameed died because of the injuries caused by the firing ot the two P.Os who were firing from the mountain. All these witnesses were consistent on the point that the appellant Ubaid was apprehended at the spot along the Kalashnikov whereas the co- accused Hameed died because of firing of their co-accused who were present on the mountain. All the witnesses are consistent in respect of time, date and place of occurrence. They are also consistent on the point that the occurrence was result of robbery committed by the four persons during which two persons from their side lost their lives whereas nine received fire arm injuries and one of the accused died in the occurrence because of firing of his co-accused. The report of Fire Arm Expert indicates that all the 18 empties recovered from the spot matched with the rifle statedly recovered from the appellant.
7(sic). After conclusion of trial, the appellant made statement under section 342, Cr.P.C. Denying his involvement in this case. He did not opt to make statement on oath under section 340(2), Cr.P.C. Or produced any defence evidence. The learned trial court vide impugned judgment dated 21.7.2011 while altering the charge from section 17(4) Offences Against Property (Enforcement of Hudood)
Ordinance, 1979 to under sections 302, 324 and 337, P.P.C. Convicted and sentenced appellant Ubaid as mentioned in the opening para of this judgment.
8. Mr. Kamran Murtaza, Advocate, learned counsel for the appellant states that record indicates that FIR was registered after delay of more than 24 hours. It is stated in FIR that the complainant and others started their journey on 1.9.2010 and on their way at 4.00 p.m. The occurrence took place, whereas the FIR was registered on 2.9.2010 at 4.00 p.m such a delay in FIR makes the prosecution case highly doubtful. Further states that in the charge framed by trial court, the date of occurrence is mentioned as 2.09.2010 and thereafter the prosecution has changed the whole concept of evidence and tried to bring the case to have taken place on 02.09.2010 and the same is evident from the fact that the date of occurrence is overwritten in the FIR; that statedly nine persons were injured in this case, fouf eyewitnesses have been produced by the prosecution which include only one injured, witness i.e. P.W.9 Shambay; no other injured witness was produced by the prosecution and in the presence of injured witnesses the production of other eyewitnesses makes the prosecution case highly doubtful. Even otherwise, such lapse in not producing the natural and important witnesses leads to an inference against the prosecution and in favour of the appellant.
The learned counsel states that site plan was got exhibited by the prosecution through P.W.10, I.O.
Who statedly prepared the same with the instruction and assistance of eye-witnesses, that the site plan indicates a different story. It shows that the bus was taken to a deserted place from the main road where the occurrence took place. Similarly, it describes the presence of a burnt motorcycle at the spot but the prosecution case does not speak a word as to how the motorcycle was burnt.
Such change of place of occurrence and missing evidence about burning of motor cycle makes the prosecution case doubtful and clearly indicate that the prosecution has withheld some important facts and in such circumstances the appellant is entitled to benefit of doubt. The appellant was found injured by the 10 just after the occurrence. He was medically examined and the doctor observed serious injuries caused by blunt means on his person which were fresh the prosecution has not explained the injuries on the person of the appellant. The recovery of Kalashnikov from the appellant was not made in presence of the I.O. Rather the Kalashnikov was produced by the complainant to the I.O. Stating that the same was snatched from the accused during the occurrence. Possibility of the Kalashnikov being used by the. Deceased co-accused cannot be ruled out. Even otherwise, the Kalashnikov and the empties were sent together to the Fire Arm Expert after an unexplained delay which makes the report of the Fire Arm Expert highly doubtful.
9. Learned counsel strongly emphasizes on the point that all the four eye-witnesses are not consistent in respect of place of firing with which the deceased and injured received injuries in this occurrence, from inside or outside the bus. Similarly, the witnesses are not consistent with each other on .The point as to with whose firing the injured and the deceased received fire arm injuries.
None of the injured has been produced to explain as to who caused his injury. Only P.W.9 Shambay the injured witness has been produced and while appearing in witness box he has clearly assigned the injury on his person to the accused who was firing from the mountain and not the appellant.
Learned counsel further states that no crime empty was recovered from inside the bus, rather, the I.O. P.W.10 has stated that nothing was recovered from inside the bus and all the crime empties were lying outside the bus so the statements of P.Ws land 5 that firing was made inside the bus, contradicts the circumstances and the evidence of P.W.8 and P.W.9 who said that the firing was made by the two co-accused who were present on the mountain in result of which the deceased and injured received fire arm injuries. Such a contradiction in the statement of eye-witnesses makes the case doubtful calling for benefit of doubt in favour of appellant. Lastly, it is stated that as the injured witness produced as P.W.9 and the eye-witness as P.W.8 have categorically stated that all the injured and the deceased received injuries at the hands of the two accused who were present on the mountain and the appellant was only responsible for causing injury to one Jada so in the circumstances the appellant is not entitled for conviction for murder under Section 302, P.P.C.
And as Jada who statedly received injury at the hand of appellant has not been produced in court, therefore, his conviction and sentence for causing him injury or any one-else is also liable to be set aside.
10. On the other hand, Mr. Nquman Shafiq, Deputy Prosecutor General Balochistan states that in the FIR it is clearly mentioned that the complainant and other witnesses started their journey on 1.9.2010 and on their way on the next day the occurrence took place at 4.00 p.m. When they were crossing the mountain. Similarly. 1l the four eye-witnesses while appearing in court have clearly stated that the occurrence took place on the next day of their journey on 2.9.2010 at 4.00 p.m. The FIR was registered at 6.00 p.m so this is a case of promptly ,lodged FIR in which the name and role of the accused/appellant is duly mentioned. This is an occurrence in which nine persons from complainant's side received fire arm injuries and two persons lost their lives whereas one of the co- accused of the appellant also died in this occurrence and two of the co-accused are still proclaimed offenders. The appellant was apprehended at the spot. The presence of certain injuries with blunt means on his person which were found fresh by the doctor in the prompt medical examination, rather indicates his involvement in this case. He was apprehended with the Kalashnikov which was later on found matched with the crime empties recovered from the spot. All the eye-witnesses fully involve him in this occurrence. All the accused came together while armed with fire arms they were having common object and intention to commit robbery and as such all of them are jointly and severely liable and entitled to full doze of punishment. The learned Law Officer states that the presence of burnt motorcycle and the change of place of occurrence to a deserted place does not affect the conviction of the appellant in this case. The learned law officer states that in the judgment previous involvement of the appellant in another case is mentioned but admits that no record in this respect is available in the file and no question in this respect has been asked in statement under section 342 Cr.P.C. Lastly, stated that involvement of appellant in this case is fully established, he has committed a heinous offence and is not entitled to any concession.
11. We have heard learned counsel for the parties and have also minutely gone through the record.
12. Admittedly, the complainant and the others started their journey on 1.9.2010 and the occurrence took place on their way on the next day i.e. 2.9.2010 at 4.00 p.m. The FIR was registered at 6.00 p.m. And the injured were examined by the doctor in the hospital at 6.45 p.m. So this is a case of promptly lodged FIR. The time of occurrence is rather confirmed from the medical evidence. The name of the appellant is mentioned in the FIR. He was IA apprehended at the spot along with a I weapon of offence. He was handed over to the Tehsildar before registration of case along with weapon of offence. He was medically examined and the doctor observed certain injuries caused by blunt means on his person. The injuries were fresh and rather corroborates the prosecution version, that a scuffle took place in which the appellant was apprehended along with weapon. Nine persons of complainant side received fire arm injuries in this occurrence. They were immediately medically examined at 6.45 p.m. In hospital.
The doctor observed the fire arm injuries to be fresh. Two persons lost their lives in this occurrence at the hand of the accused. Their dead bodies were examined just after few hours of the occurrence and the doctor found the injuries on their person to be fresh. One of the co-accused of the appellant statedly received fire arm injury at thc hand of his co-accused. He died on the way to hospital. His dead body was examined by the doctor who found his injuries to be fresh and caused by fire arm. All these things put together leads a clear inference that the appellant along with his deceased co-accused and two proclaimed offenders were involved in this occurrence of robbery and during the occurrence by their firing, nine persons were injured and two persons lost their lives and one of the accused died in the same process. The appellant was apprehended at the spot and was handed over to the Tehsildar along with his weapon which he used in the occurrence. Crime empties were recovered from the place of occurrence. Later on sent to the Fire Arms Expert and it was observed that they were fired from the Rifle used and recovered from the appellant. So in the facts and circumstances the involvement of the appellant under section 394, P.P.C. Is fully established. In section 394, P.P.C. It is stated that:-- "if any person, in commando or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery shall be punished with imprisonment of life or with rigorous imprisonment for a term which shall not be less than four years nor more than ten years, and shall be liable to fine ".
13. Charge was framed under section 17(4) Offences Against Property (Enforcement of Hudood)
Ordinance, 1979 indicating that the appellant along with his deceased co-accused Hameed and two P.Os. Shoukat and Salahuddin while armed with Kalashnikov stopped the bus after firing at it and attempted to loot the passengers and in the process killed two passengers and injured many others with their firing, The learned trial court after conclusion of the trial convicted the appellant only under sections 302, 324, 337, P.P.C.
14. Section 20 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 is that; "whoever commits haraabah which is not liable to the punishment provided for in section 17, or for which proof in either of the forms mentioned in section 7, or for which punishment of amputation or death may not be imposed or enforced under this Ordinance, shall be awarded the punishment provided in the Pakistan Penal Code for the offence of daroity, robbery of extortion, as the case may be "
' From the circumstance and in evidence produced during the trial it is established that appellant along with his deceased co-accused and two proclaimed offenders jointly attempted to commit robbery while armed with firearm weapon and in the process of this attempt they caused firing in result of which two persons died and nine received fire arm injuries. So, it is clear that offence under section 394, P.P.C. Is clearly made out and the learned trial court has erred in not convicting the appellant under section 394, P.P.C. While relieving from section 17(4) Offences Against Property (Enforcement of Hudood) Ordinance. 1979.
15. The appellant along with the deceased/accused and two proclaimed Offenders jointly with their common intention and for common object committed this occurrence in which two persons were killed and others received fire arm injuries. So, every one of them is jointly and severely liable to same extent for the murder and causing injuries, to the innocent victim even if they are not responsible for causing any specific injury to anyone.
16. To establish the liability of appellant in this respect we have considered the statements of all the four eye-witnesses to find out the role assigned to the appellant. In the FIR it is stated that the appellant entered the bus along with his co-accused and with his firing all the injured and the deceased received fire arm injuries. The appellant was apprehended along with his Kalashnikov and at that time the co-accused who were on the mountain started firing in result of which their own companion Hameed received fire arm injuries and later on died. While appearing in court as P.W.5 the complainant narrated the same story. P.W.1 Badal also took the same stance. P.W.9 Shambay the injured witness took a different stance. He stated that two armed persons were on the mountain whereas two were on the road with muffled faces. One (the appellant) was having Kalashnikov. Firing was made on the bus by the accused who were on the mountain in result of which all the injured and deceased received fire arm injury. The appellant was having a Kalashnikov. He was apprehended by Gul Muhammad P.W and Jada, the appellant fired at Jada but still he was not released, resultantly, the two accused present on the mountain started firing in result of which one of their own companion Hameed received fire arm injury and later on died. The appellant was apprehended along with Kalashnikov and was handed over to the Tehsildar. P.W.8 Gul Muhammad took the similar stance, so this is a case for which prosecution has taken two different stances.
' In this situation, while taking guidance from case reported in 1976 SCM R 185 (Muhammad Din alias Manna v. The State). Relevant portion for this case is reproduced as under:- S.302- (Murder case)-Appreciation of evidence-Entire evidence of witness-Cannot be rejected simply on ground of his having exaggerated part played by some accused on falsely implicating some-Duty of Court-To sift grain from chaff.....
So we have to sift grain from chaff to ascertain the correct position. The injured witness Shambay PW-9 and the eye-witness P.W.8 Gul Muhammad have taken the stance that the appellant caused firing on one Jada and the remaining injured and the deceased received fire arm injury at the hand of the co-accused who was standing in the mountain whereas the complainant PW-5 and P.W.I Badal has gated that the appellant entered the bus and because of his firing inside the bus the injured and the deceased received fire arm injury. Only the co-accused Hameed received the injuries at the hand of his co-accused who were present on the mountain. The I.O. While appearing in court has stated that nothing was recovered from inside the bus and all the crime empties were lying outside the bus, so we think the version taken by the injured witnesses whose presence at the spot cannot be denied and whose statement is corroborated by recovery of crime empties from outside the bus is more reliable. So, the prosecution succeeded in establishing that the appellant was present along with his co-accused with the common object and intention of committing robbery and in process of committing such offence, he caused injury to one of the injured Jada whereas his co-accused who were present on the mountain caused injury to the remaining injured and the deceased of this case. Even the co-accused received injury at the hand of those accused who were present on the mountain, the appellant was not assigned any injury to the deceased or the injured except Jada. So, in the given circumstances there is in sufficient evidence to indicate clear involvement of the appellant in committing murder of both the deceased or killing their own co-accused. Jada has not been produced in court and Shambay P.W.9 the sole injured witness produced in court categorically assigned his injury to the other accused who were on the mountain.
17. The medical evidence does not indicate or confirm any thing that any of the injured or the deceased received injuries at the hand of the appellant. The positive report of the Fire Arm Expert is of no use, specially when the weapon and empties were sent together to Fire Arm Expert at much belated stage and while keeping in view that the Rifle was produced by the complainant to the 1.0.
And was not recovered from the appellant in presence of I.O.
18. In the circumstances, the net result is that as discussed in paragraph-14, the appellant is clearly involved and liable under section 394, P.P.C. The appellant was having common intention and has acted for common object to commit robbery in the process of which two persons were killed and many were injured so the appellant is also vicariously liable under sections 302(b) and 324, P.P.C.
19. There is no evidence to indicate or assigned any specific injury on any of the injured to the appellant. The injury on injured Jada was assigned to the appellant by the P.W-8 and PW-9 but Jada was not produced to verify the same, so conviction of the appellant for causing any injury to any of the injured is not proved or made out. Consequently, the conviction and sentence of the appellant in this respect under sections 337-F (v), F(vi), A(v), F(ii), F(i), P.P.C. For causing injury to any of the injured is set aside.
20. Considering the proved facts of the prosecution case the appellant is convicted under section 394, P.P.C. And is sentenced to life imprisonment with fine of Rs.10,000/- or in default to further undergo S.I for three months: He is also convicted under section 302(b)/34, P.P.C. And is sentenced to life imprisonment on two counts with the compensation of Rs.10,000/- on each count to be paid to the legal heirs of the two deceased Mst.Hani Kamalan and Wahid Bakhsh under section 544-A, Cr.P.C. In default in payment to further undergo 3 months S.I. On each count. His conviction and sentence of 7 years' R.I. With fine of Rs.10,000/- and in default to further undergo two months S.I.
Under section 324. P.P.C. Is upheld. Benefit of section 382-B, Cr.P.C. Shall also be extended to the appellant. All the sentences shall run concurrently.
' With this modification in the conviction and sentence, the appeal is disposed of.
' The murder reference bearing No.2-Q-2014 is answered in the Negative.