ABDULLAH BALOCH, J.---This common judgment disposes of Cr1. Appeal No.(S)14/2019 and Criminal Revision Petition No.(S)09 of 2019.
Criminal Appeal No.(S)14 of 2019 has been filed by the appellant Muhammad Azam son of Haji Allah Bakhsh, against the judgment dated 16th Februar y 2019 (hereinafter referred as, "the impugned judgment") passed by learned Sessions Judge Jaffarabad at Dera Allah Yar (hereinafter referred as, "the trial Court "), whereby the appellant was convicted under Section 302/34, P.P.C. and sentenced to suffer imprisonment for life and to pay Rs.5,00,000/- (Rupees Five Hundred Thousands) as compensation envisaged under Section 544-A, Cr.P.C., which in case of recovery was directed to be paid to the legal heirs of deceased Mujeeb-ur-Rehman or in default thereof to further suf fer five (05) years S.I., with the benefit of Section 382-B, Cr .P.C.
While the complainant Ghulam Ali filed Criminal Revision Petition No.(s)09 of 2019 for enhancement of sentence of appellant from life imprisonment to that of Death sentence.
2. Facts of the case are that after acceptance of application under Section 22-A, Cr.P.C. by learned Justice of Peace, the Tehsildar Levies Bhag on 2nd March 2016 on the complaint of Ghulam Ali son of Abdul Sattar , lodged FIR No.08 of 2016 at Levies Station Bhag, under Section 302 Q & D Ordinance read with Section 34, P.P.C., stating therein that he along with his famil y members and brother Mujeeb-urRehman was residing in tents at Basit Jhok Qasim Shah Bhag , while his brother used to have been grazing goats and sheep. On 26th January 2014, his brother Mujeeb-ur-Rehman while grazing goats disappeared, thus he made search of his brother , but could not succeed. He further stated that through Balochi Hal-o-A wal he came to know that the appellant Muhammad Azam along with accused Zain-ul-Abidin, Muhammad Aslam and Muhammad Gul alias Gulla murdered his brother Mujeeb-ur-Rehman and buried his dead body at unknown place.
3. The appellant was arrested in the case , who was subjected to investigation and on completion thereof, he was challaned in the trial Court. At the trial, the nominated accused Muhammad Aslam, Muhammad Gul alias Gulla and Zain-ul-Abidin were not arrested, thus proceedings under Sections 87 and 88, Cr.P.C. were carried out by the trial Court and they were declared as proclaimed of fenders.
4. Charge was framed and read over to appellant, who claimed trial. The prosecution produced eight (08) witnesses in support of charge. On close of prosecution side, the appellant was examined under Section 342, Cr.P.C. However , neither he recorded his statement on oath nor produced any witness in his defence. On conclusion of trial and after hearing arguments, the trial Court convicted and sentenced the appellant as mentioned above in para No.1, whereafter the appellant filed appeal, while the complainant filed criminal revision petition for enhancement of sentence awarded to the appellant.
5. Heard the learned counsel and perused the available record. In order to establish to charge the prosecution has produced the evidence of eight witnes ses. The star witnesses of the prosecution are PW-2 Ghulam Ali (complainant), PW-3 Abdul Ghaf far (eye-witness), PW-5 Abdul Rehman (eye-witness of burial of deceased) and PW-6 Dr. Noor Ahmed, Police Surgeon. The complainant of .the case namely Ghulam Ali appeared in the Court as PW-2. Perusal of his statement reflects that the same is based upon hearsay evidence. This witness has not directly witnessed the crime rather accord ing to him he was informed by PW-3 Abdul Ghaf far about committing the murder of his deceased brother Mujeeb-u r-Rehman in his presence, while PW-5 Abdul Rehman informed about the burial of deceased. Record further reflects that PW-2/ complainant had failed to report the matter of missing of his brother in the concerned police station in the year 2014. Since, PW-2 through his statement has failed to produce any direct or indirect evidence against the appellant, thus his statement is not helpful to the case of prosecution.
After discarding the evidence of PW-2, the prosecution has left to rely upon the statements of PW-3 Abdul Ghaf far and PW -5 Abdul Rehman.
6. According to PW-3 he along with the deceased Mujeeb-ur-Rehman were grazing herds near Jhok Qasim Shah , when the accused persons Muhammad Azam (appellant) along with absconding accused Zain-ud-Din and Muhammad Aslam arrived there in motorcycles, who beaten the deceased. According to this witness Muhammad Azam was armed with pistol, Muhamma d Gul was having rifle, Zain-ud-Din was armed with Kalashnikov and Muhammad Aslam was in possession of knife and Muhammad Aslam cut the throat of deceased with knife and warned PW-3 for dire consequences, if he informs anybody . According to this witness on query from the accused, they disclosed that they have declared him Siya Kaar . Thereafter , two muffled face persons came over there and took the dead body in a pick-up. Likewise, PW-5 Abdul Rehman in his statement stated that his house is located nearby the graveyard and in the mid of night at about 2.00 a.m. two motorcyclists and one vehicle came to graveyard, whom were in possession of dead body of deceased Mujeeb-ur-Rehman. According to this witness on query from the accused, they disclosed that they have declared the deceased as Siya Kaar and threatened that in case he (PW -5) informed someone else, he will face same consequences.