ABDUL HAMEED BALOCH, J. Through this judgment we intend to dispose of Criminal Appeal No. 161 of 2019, Criminal Revision Petition No. 16 of 2019 and Criminal Acquittal Appeal No. 187 of 2019, as the same are out come of one and same incident and same have been directed against the judgment dated 7th May, 2019 (impugned judgment), passed by learned Sessions Judge (Ad hoc)/MCTC, District Quetta (trial court).
2. Succinet facts of the case are that on 11th January, 2014, FIR No. 12 of 2014, under sections 302, 324, Qisas and Diyat Ordinance read with section 34, P.P.C. was registered with Police Station Satellite Town, Quetta, on the report of complainant Abdul Sadiq alleging therein that on 11 th January, 2014 at about 4:15 p.m., the complainant was in Bazar when. Jehanzaib and Shamsullah informed him on phone that his brothers Abdul Malik, Abdul Khaliq and maternal uncle Haji Abdul Hanan were on their way to home situated at Alizai Town, the accused Ahmed Shah Afghani having Kalashnikov, Azizullah Shah alias Tor Jan Langra having pistol and his son Zulmai having Kalashnikov and another unknown armed accused, made indiscriminate firing upon them, due to which they received severe injuries and they are taking them to hospital for treatment. It was alleged by the complainant that on such information he rushed to hospital where his brothers Abdul Malik Assistant Director University of Balochistan was lying in pool of blood having bullet entry wound on his right shoulder and exit on is left armpit, while his other brother Abdul Khaliq was having bullet injury at his lumber region and his uncle Abdul Hanan received bullet injury on left side of his hip.
With these averments FIR was chalked.
3. After registration of FIR, the investigation of the case was conducted, whereafter, challan of the case to the extent of arrested accused Ahmed Shah and Gulab Shah was submitted before the court of Additional Sessions Judge-III, Quetta and finally transferred to the files of Sessions Judge (Ad hoc)/MCTC, Quetta.
4. After codal formalities charge was framed to which the accused denied. At the trial the prosecution produced as many as nine (09) witnesses. After close of prosecution side the accused were examined under section 342, Cr.P.C., in which they once again denied the allegation and claimed to be innocent. The accused Ahmed Shah did not record his statement on oath under section 340(2), Cr.P.C., however, produced two defence witnesses. Whereas the accused Gulab Shah recorded his statement on oath under section 340(2), Cr.P.C., but did not produce any witness in his defence.
5. After completion of trial the learned trial court heard arguments and thereafter, vide impugned judgment dated 7th May, 2019, acquitted accused Gulab Shah of the charge, whereas accused Ahmed Shah was convicted under section 302(b), P.P.C. and sentenced to suffer life imprisonment on two counts for committing intentional murder of Abdul Malik and Abdul Khaliq. The accused Ahmed Shah was also directed to pay compensation of Rs.10,00,000/- (Rs.500.000/- each) under section 544-A, Cr.P.C. to the legal heirs of both the deceased. The accused Ahmed Shah was further convicted under section 337-F(iii), Q&D Ordinance and sentenced to suffer one year rigorous imprisonment and to pay Daman of Rs.500,000/- to injured Abdul Hanan and in case of default the accused shall remain in custody till realization of amount of Daman. Benefit of section 382-B, Cr.P.C. was also extended to the accused. All the sentences were ordered to be run concurrently. Hence the accused Ahmed Shah has filed appeal against his conviction, while the complainant filed criminal revision petition for enhancement of the sentence and criminal acquittal appeal against acquittal of accused Gulab Shah.
6. Learned counsel for the appellant in Criminal Appeal No. 161 of 2019 contended that the prosecution has failed to collect incriminating evidence against the appellant Ahmed Shah. The witnesses are per se related to each other having landed dispute with the appellant. The prosecution did not record statement of any independent witness. As per law the statement of interested witnesses required strong corroboration. The ocular witnesses could not justify their presence at the place of occurrence at the relevant time. All the witnesses contradicted each other on material aspect even made dishonest improvements in their depositions.
7. The learned Additional Prosecutor General as well as counsel for the complainant have supported the judgment of the trial court and stated that the statements of the witnesses were corroborated by recovery of crime weapon, MLCs. Despite lengthy cross-examination the defence has failed to shake the statements of prosecution witnesses. The trial court has properly appreciated the evidence. In the end prayed for enhancement of the sentence.
8. The learned counsel for the appellant in Criminal Acquittal Appeal No. 187 of 2019 contended that the trial court without any justification discarded the statements of prosecution witnesses in regard of acquitted accused. The prosecution witnesses fully implicated the acquitted accused in commission of the crime.
9. The learned Additional Prosecutor General supported the judgment of the trial court in respect of acquittal of the accused/respondent Gulab Shah.
10. We have heard the learned counsel for the appellant, complainant as well as APG and State Counsel at length and perused the record. In pursuance of written application Ex: P/1-A FIR was registered. The prosecution in order to substantiate its case produced nine witnesses. Besides the injured witness the prosecution recorded statements of two ocular witnesses. The prosecution case rests on ocular account, recovery of crime weapon Kalashnikov from the appellant Ahmed. Shah, recovery of pistol on pointation of acquitted accused Gulab Shah, casing of Kalashnikov, positive report of Fire Arms Expert in respect of Kalashnikov and pistol, positive report of blood stained earth and clothes and medico legal certificates.
11. Admittedly the complainant (PW-1) is not ocular witness. He was informed by PW-2 Shamsullah and PW-3 Jehanzaib immediately after the occurrence. Both the deceased Abdul Malik and Abdul Khaliq are brothers of the complainant. Ex: P/1-A reveals that the occurrence took place at 4:15 p.m., while the matter was reported at 7:20 p.m. The complainant stated that at the time of information he was at Bazar. The complainant stated that the persons who informed him were not his relatives.
Whereas the witness deposed that both the witnesses (PW-2 and PW-3) informed him on telephone and denied relationship with them. The witness admitted that his another brother is employee in Police Department as Sub-Inspector. PW-1 denied any landed dispute between him and accused Ahmed Shah. The Witness was ignorant about the distance of main gate of Saddar Town from eastern bypass. The witness replied to a question and admitted that in Ex: P/1-A the name of acquitted accused Gulab Shah is not mentioned.
12. PW-2 stated in his statement that he along with Jehanzaib (PW-3) were present at eastern bypass near Alizai Town. The accused armed with sophisticated weapons fired on Abdul Malik, Abdul Khaliq and Abdul Hanan, due to which they fell down. They took them to hospital. The witness stated that the occurrence had taken place in front of Saddar Town. The witness shown ignorance in reply of suggestion that the occurrence took place near the house of Azizullah. Further, stated that he informed the complainant within an hour. The witness replied to a suggestion that he has no knowledge that accused Ahmed Shah had sustained. 23 bullet injuries in the incident. They reached at hospital at Maghrib time. He recorded his statement after Maghrib i.e. 6:30 p.m. The witness deposed that police recorded his statement at hospital and at that time no other person was present. Thereafter, he went to home. The witness stated that his statement was not recorded at the place of occurrence. The witness admitted that Abdul Razzaq is his brother. He met Jehanzaib (PW-3) after recording statement. The witness further stated that he reached Thana after Esha prayer. PW-3 Jehanzaib denied that the occurrence took plate at Saddar Town. The witness deposed that he did not phone anyone. The witness stated that he and PW-2 did not meet regularly. The witness deposed that he recorded his statement at hospital after half hour reaching at hospital. He did not visit the place of occurrence again.
13. PW-4 injured Abdul Hanan stated that he did not know Abdul Razzaq. While replying to a question the witness stated that Shamsullah is brother of Abdul Razzaq. The witness denied the suggestion that there is pipe and cement factory inside Saddar Town. The witness deposed that on the day of occurrence he, Abdul Khaliq, Sadiq and Malik were accompanying each other. While PW-1 complainant stated that at the time of occurrence he was at Bazar.
14. From the statement of ocular account it appears that the witnesses were chance witnesses.
Neither they were resident of the area, nor have any business near the place of occurrence. The- above referred witnesses could not assign any reason for coming to the place of occurrence at the relevant time. In such circumstances PW-2 and PW-3 were chance witnesses and their presence at the relevant time is not free from doubt. The place of residence of said witnesses were far-away from the place of occurrence. Even the witnesses were to justify their presence at the place of occurrence at the relevant time, but they failed to do so. Such circumstances rendered the testimony of witnesses untruthful and were liable to be excluded from consideration. Reliance is placed on the case of Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652 and Mst.
Sughra Begum v. Qaiser Pervez 2015 SCMR 1142.
15. Now adverting to the statement of injured witness PW-4 Abdul Hanan. It appears from the record that the witness is not telling the whole truth. PW-9 stated that he recorded the statement of injured on 19th January, 2014, meaning thereby that the statement of the witness was recorded under section 161, Cr.P.C. after eight (08) days delay without plausible explanation. The witness stated that he do not know Abdul Razzaq. On the contrary while replying to a query stated that PW- 2 and Abdul Razzaq are brothers. On one hand the witness stated that he along with Abdul Malik and Abdul Khaliq were going and the accused fired upon them, whereas in the same breath the witness stated that at the time of occurrence Sadiq (complainant) was with them. The facts narrated by the witness were not to be implicitly accepted merely because he was injured witness.
The testimony of injured witness is to be tested on the principle for appreciation of other prosecution witnesses. Injury means that certainly the witness was present at the place of occurrence, but merely the injury on the person would not stamp him a truthful witness as held in case of Amin Ali v. The State 2011 SCMR 323.
"It is correct that the two eye-witnesses are injured and the injuries on their persons do indicate that they were not self-suffered. But that by itself would not show that they had, in view of the aforenoted circumstances, told the truth in the Court about the occurrence; particularly, also the role of the deceased and the eye-witnesses. It cannot be ignored that these two witnesses are closely related to the deceased, ----"
16. Admittedly the private witnesses and deceased were closely related. Mere relationship of a witness cannot be a ground to discard his version, but for safe administration of justice care is required and while applying rule of caution independent corroboration to the statement of interested and inimical witnesses is required which is lacking in the instant case. Reliance is placed on Atta Muhammad v. The. State 1995 SCMR 599.
17. PW-9 admitted that there is dispute between complainant party and accused and in this regard Arbitration Agreement was signed on stamp paper. The Investigating Officer further stated that he has taken into possession said stamp paper.
18. Be that it may the question is as to which of the party was aggressor, it is to be judged from the attending circumstances and conduct of witnesses. The defence has also produced witnesses.
They confirmed injury on the appellant. While the prosecution witnesses and Investigating Officer have suppressed the injuries on the person of appellant. Admittedly the occurrence had taken place in Saddar Town where the house of the appellant and his absconding son is situated meaning thereby that some one attacked the said house resulting into fire arm injuries to persons of both sides. Evidence reveals that the house of the appellant was attacked. The appellant in his statement under section 342, Cr.P.C. admitted that the complainant party fired upon him due to which he sustained injuries, meanwhile his son (absconding accused) fired upon the complainant party. Mere number of injuries sustained by the complainant party could not be sufficient to hold that the accused was aggressor, possibility of self-defence could not be ruled out. Reliance is placed on Bashir Ahmed v. The State 2019 SCMR 1417.
19. The Investigating Officer visited the place of occurrence, prepared site plan Ex: P/9-C. It appears that the incident had taken place inside Saddar Town near the house of Azizullah at point C which had a boundary wall with gates. While the ocular witnesses PW-2 and PW-3 stated that they were present at bypass. It was not possible for PW-2 and PW-3 to see the occurrence at point C while standing on bypass road. PW-9 stated that he prepared the site plan on the pointation of ocular witnesses but they are silent in this regard. The witnesses stated that their statements were recorded at hospital after Maghrib prayer and thereafter they went to their houses. The question is that if the site plan. is prepared on the pointation of ocular witnesses why their presence was not shown in Ex: P/9-C. It means that both the witnesses were not present at the spot. The Investigating Officer stated that he recorded the statements of ocular witnesses on the place of occurrence which the witnesses denied and stated that their statements were recorded at hospital. In Ex: P/9-C no house or shop of the witnesses was shown, thus it was not really believable that the eye-witnesses were present at the place of occurrence. Reliance is placed on the case of Nazir Ahmed v. The State 2018 SCMR 787.
20. Admittedly the site plan is not a substantive piece of evidence, but being first reflector of the spot as pointed out by eye-witnesses, furnishes, view of occurrence to scrutinize the evidence tendered at the trial court by the prosecution witnesses. Reliance is placed on the case of Abdul Sattar v. The State 2008 PCr.LJ 869.
21. As per prosecution, on information, search of the house of appellant was made and appellant was arrested from inside the bathroom with Kalashnikov in injured condition. The story of prosecution does not appeal to prudent mind. Even otherwise the appellant has been acquitted in the Arms case and no appeal has been filed by the prosecution/State. The allegedly recovered Kalashnikov was sent to Fire Arms Expert with delay of more than three months for which no explanation has been afforded by the prosecution. The prosecution could not take benefit of such belated report of Firearms Expert. Reliance is placed on the case of Muhammad Farooq v. The State 2006 SCMR 1707.
22. Another piece of evidence with prosecution is positive report of the blood stained articles. Mere sending of blood-stained clothes, earth to FSL would not serve the purpose of prosecution, nor it provide evidence to inter link different articles unless the bloodstained earth it proved that it was the same group which was available on the clothes of the victim and the blood-stained earth. On failure the opinion of Expert could not be used as corroborative piece of evidence. Reliance is placed on the time of Muhammad Asif v. The State 2017 SCMR 486.
23. It is an admitted principle of criminal administration of justice that for disbelieving the statements of witnesses it is not necessary that there should be numerous infirmities, contradictions. If there is one which impeaches the credibility of the witness, the entire statement of the witness would be doubtful. The conviction in capital punishment cannot be sustained without unimpeachable, trustworthy and reliable evidence. The prosecution should prove the criminal liability by strong and consistent evidence.
24. The record depicts that the trial court has disbelieved the statements of prosecution witnesses qua acquitted accused. The principle of Falsus in uno, falsus in omnibus as discussed by Honorable Supreme Court of Pakistan in PLD 2019 SC 527, applies to the discarded prosecution witnesses to the extent of the appellant.
25. The alleged recovery of pistol on the pointation of acquitted accused Gulab shah and report of FSL about its working condition is not helpful to the prosecution as no empty of pistol was recovered from the place of occurrence.
26. All the above infirmities in prosecution case were not considered by the trial court while awarding conviction and sentence to the appellant. The nutshell of the above discussion is that the prosecution case is not free from doubt.
27. In the facts and circumstances of the case, the acquittal of accused Gulab shah is not perverse or contrary to record.
For the above reasons Criminal Appeal No. 161 of 2019 filed by appellant Ahmed Shah is accepted and the judgment dated 7th May 2019 passed by Sessions Judge (Ad hoc)/MCTC Quetta to the extent of conviction and sentence of appellant is set aside. The appellant Ahmed Shah son of Muhammad Amin is acquitted of the charge under sections 302(b) and 337-F(iii), P.P.C. in FIR No. 12 of 2014, Police Station Satellite Town, Quetta. He is in custody be released forthwith if not required in any other case.
As a result of the above the Criminal Revision Petition No. 16 of 2019 and Criminal Acquittal Appeal No. 187 of 2019 are dismissed.