SHAUKAT ALI RAKHSHANI, J. Abdul. Khaliq, the appellant has assailed the judgment dated 25.09.2021 ("impugned judgment") authored by learned Sessions Judge, Mastung ("Trial Court") emanating from an FIR No. 25 of 2020 registered within the precincts of Levies Station Wali Khan, Mastung, whereby the appellant was convicted and sentenced in the following terms; "Therefore, while found the accused Abdul Khaliq to be guilty of sections 302, 34, P.P.C., therefore, I hereby convict the accused Abdul Khaliq son of Duray Khan, by caste Jattak resident of Rodraees Pringabad, Mastung and sentenced him for LIFE rigorous imprisonment. The convict however, is liable to pay amounting Rs. 500000/- (Rupees five lacs) to the legal heir of deceased Mir Shadain as compensation. He is further liable to pay Rs.200000/- (Rupees two lacs) to the injured Kaleemullah as DAMAN. In default of the above compensation amount, he shall further undergo for six (06) months' simple imprisonment (S.I)."
2. Unfurled facts reveal that complainant Shah Faisal (PW-1) lodged the FIR (Ex.P/8-A) by submitting an application (Ex.P/1-A), wherein he reported that on 17.08.2020, while he along with his brother Mir Shadain Ahmed, cousins Mir Kaleemullah (PW-6), Mir Saifullah (PW-3) and Israr Ahmed were returning home from their fields situated at Killi Rodraees, when they reached graveyard, appellant Abdul Khaliq having an axe attacked upon Kaleemullah (PW-6), Abdul Malik, Muhammad Umar, Nauroz assaulted upon them with sticks, whereas Dost Muhammad armed with kalashnikove made firing, which hit Mir Shadain, whereby Israr Ahmed (PW-3) and Kaleemullah (PW-6) received severe injuries, whereas due to firing of Dost Muhammad, his brother Mir Shadain succumbed on the spot.
Appellant Abdul Khaliq was arrested, whilst rest of the nominated accused remained away.
3. After registration of the FIR, Investigating Officer ("I0") Muhammad Ayub Risaldar (PW-8) went to the crime scene, prepared site plan (Ex.P/8-B), inquest report (Ex.P/8-C) and sent the dead body for postmortem examination; he took blood-stained earth through recovery memo (Ex. P/5-B), four empties of kalashnikov (Ex.P/4-A) in presence of Hussain Ahmed constable (PW-4). Next day, in the presence of Aziz Ahmed (PW-5), a private witness, who heard the fire shots, although, did not see the culprits, but stated to have seen the injured and deceased whom he took to the hospital. He is also mashir to the recovery of bloodstained earth, clothes of deceased as well as of both the injured persons.
Dr. Muhammad Umar (PW-2) issued Medico Legal Certificate ("MLC") as Ex.P/2-A of the deceased, whereas Dr. Ali Mardan, Police Surgeon (PW-7) examined injured Kaleemullah and Israr Ahmed and issued MLCs Ex.P/7-A and Ex.P/7-B respectively. Investigating Officer ("IO") Muhammad Akram Harifal-Tehsildar (PW-9) arrested appellant Abdul Khaliq on 10.09.2020, whereas the others stayed away from law; thus, declared proclaimed offenders.
4. The Trial Court indicted the appellant by framing a formal charge on 30.11.2020, to which, the appellant entered the plea of denial, leading the prosecution to produce as many as nine prosecution witnesses in order to bring home the charge. After denying the allegations, while being examined by the court, he did not opt to lead defence.
5. On conclusion of the trial, the appellant was held guilty of the charge, hence, convicted and sentenced in the terms mentioned in the preceding para supra.
6. Learned counsel for the appellant inter alia contended that there material contradictions in the statements of prosecution witnesses, particularly, in the statements of Israr Ahmed (PW-3) and Kaleemullah (PW-6), making the instant case highly doubtful. He maintained that in the absence of recovery of axe from the appellant has weaken the case of prosecution. Emphasis was laid that learned trial Judge has misread the evidence and has recorded the conviction and sentence contrary to the evidence available on record, therefore, requested for acquittal of the appellant.
Conversely, learned APG, while opposing the instant criminal appeal filed by the appellant against his conviction and sentence contended that non-recovery of axe does not effect the overwhelming ocular account furnished by injured (PW-3) and (PW-6). According to him, the medical evidence has corroborated the testimonies of the injured witnesses. He vigorously argued that the prosecution has discharged the burden of proof without any doubt; thus, the judgment impugned herein being based on proper appraisal of the evidence needs not to be overturned, therefore, sought dismissal of the appeal.
7. Learned counsel for the parties has been heard and record pondered upon with utmost muse and caution. The case of the prosecution rests upon the ocular testimony of complainant Shah Faisal (PW-1), injured Israr. Ahmed (PW-3) and injured Kaleetnullah (PW-6), the medical evidence furnished by Dr. Umar (PW-2), who examined deceased and Dr. Ali Mardan Mengal (PW-7), who examined and treated A both the injured PWs-3 and 6. Complainant (PW-1) reiterated what he had mentioned in his report (Ex.P/1-A). He testified that he along with deceased Mir Shadain, cousin Mir Kaleenaullah (PW-6) and Israr Ahmed (PW-3) were returning home, when they reached near graveyard, absconders Abdul Malik, Muhammad Umar and Nauroz attacked upon him and Israr Ahmed (PW-3) with sticks, whereas Abdul Khaliq, the appellant struck with an axe blow on the head of Kaleemullah (PW-6), whereby both of his cousins received severe injuries, whereas proclaimed offender Dost Muhammad fired at Mir Shadain, who succumbed on the spot, whereafter the culprits fled away. He was cross-examined at length, but he remained firm and consistent. His testimony went unshaken. Israr Ahmed (PW-3) testified absolutely in line with the testimony of Shah Faisal (PW-1). He gave the similar account of the B occurrence with specific roles as narrated by complainant (PW-1). He was subjected to a lengthy cross-examination, but he did not step back and remained firm and consistent on material points, corroborating the testimony of complainant (PW-1) Similarly, injured Kaleemullah (PW-6) corroborated the ocular account furnished by complainant (PW-1) and injured Israr Ahmed (PW-3). He gave the details of the occurrence in a very natural manner, attributing specific roles to the appellant as well as proclaimed offenders.
After in depth scrutiny of the ocular account of the aforesaid prosecution witnesses, we have found their testimonies confidence-inspiring and truthful as their statements coincide with each other, creating no space to doubt them. The medical evidence furnished by Dr. Muhammad Umar Police Surgeon, (PW-2), who examined the deceased confirmed the injury caused by firearm, making an entry wound on the right axillary region with exit wound on left axillary region, causing death due to injury to the vital organ in thoracic cavity. He was cross-examined, but nothing favourable could be extracted from his deposition. In a similar fashion, Dr. Ali Mardan C (PW-7) furnished his account of treating the injured PWs-3 and 6. Regarding Kaleemullah, he observed a lacerated wound on the top of skull and a bruise on the shoulder; besides complain of pain all over his body, whereof he issued MLC (Ex.P/7-A). After examining injured Israr, he observed lacerated wounds on the right side of forehead on eyelid and on nose, bruises on right arm and right forearm as well as a lacerated wound on back of skull, which were incorporated in MLC (Ex.P/7-B). As the MLC of injured Kaleemullah shows that the injuries inflicted were blunt in nature, as such, learned counsel for the appellant objected that Kaleemullah stated to have received injuries by an axe blow, but the injuries observed in the MLC show lacerated wounds instead of incised wounds as strike of an axe can only make incised wound only. It may be observed that if an axe blow is inflicted from the sharpe side then obviously it may make an incised wound, but in case where blow is made from back end of the axe, which is blunt, it does make a lacerated wound, therefore, such contention 'of the learned counsel for the appellant does not carry weight to make the case doubtful.
8. Now, adverting to the conviction and sentence awarded to the appellant, it may be observed that undoubtedly, the prosecution has established that the appellant has attacked upon Kaleemullah with an axe, inflicting injuries, detail whereof contains in the MLC (Ex.P/7-A), but we disagree that he is liable to be convicted under section 302 of P.P.C., while joining hands with the proclaimed offenders, having common intention shared by and object. Undeniably, role of firing has been attributed to proclaimed offender Dost Muhammad, whereby deceased Mir Shadain succumbed; however, prosecution failed to establish the requisites of object and intention shared by the attackers, including the appellant.
The facts and circumstances show that the occurrence of murder took place at spur of the moment. Had it been the motive of the appellant to commit murder of Kaleemullah, he would have struck with the sharpe side of axe and repeated the same until his death. Thus, the appellant cannot be held responsible either for the murder of deceased or the murderous assault upon injured Kaleemullah, as such, we have arrived at the conclusion that he is only liable for the injuries caused to Kaleemullah (PW-6), therefore, he is convicted and sentenced two counts i.e., under section 337-A(ii) to pay Arsh, which shall be 5% of Diyat to injured Kaleemullah (PW-6) and imprisonment of two years RI as well as under section 337-L(2) to suffer six months imprisonment; however, both the sentences shall run concurrently.
9. For the foregoing reasons, the appeal is partly allowed; the impugned judgment is Modified by setting aside the conviction and sentence recorded under section 302 of P.P.C. and convicting and awarding sentence to the appellant in the terms ibid. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.