AMIRUL MULK MENGAL, J.- Learned Additional Sessions Judge, Usta Muhammad tried appellants Ali Nawaz son of Muhammad Yakab Sohaba son of Muhammad Yakab and Abdullah son of Muhammad Hayat for an offence under section 302 Qisas and Diyat Ordinance, 1990 read with section 34 PPC in Sessions Case No. 3 of 1991 and found them guilty and convicted them with the following sentence vide judgment dated 13.10.1992.
"1 convict the accused facing trial under section 302 (b) PPC (as intended) read with section 34 PPC and sentence them to imprisonment for life. The accused facing trial are further ordered under section 544-A Cr.P.C, to pay Rs.5000/-(Five thousand)each as compensation to the heirs of the deceased. The accused Sohaba, Ali Nawaz and Abdullah present in court in custody be detained in Central Jail Mach to serve out the sentence.. The period spent by them as under trial prisoners be counted under section 382-B Cr.P.C, towards their said sentence.
Additionally accused Abdullah was found guilty under section 13-E Arms Ordinance, 1965 and was convicted and sentenced to suffer 3 years R.I.
2. Feeling aggrieved from the aforementioned judgment and sentence Criminal Appeal No.140 of 1992 and Criminal Appeal No.141 of 1992 have been filed by the accused persons.
3. Since both the appeals arise out of common facts and law, therefore, wc are inclined to dispose of the same vide this common judgment.
4. Brief facts for filing of these appeals are that on 6.2.1991 at about 11.55 a.m. One Ghulam Qadir lodged a report with Police Station Usta Muhammad stating therein that on the said day, after attending the court of Additional Sessions Judge, Usta Muhammad, he along with his brother Din Muhammad and cousin Naseer were proceeding towards Usta Muhammad Bus Stand. As soon as they reached near Jamila Petrol Pump Usta Muhammad accused Ali Nawaz armed with a Spade, Sohaba armed with a Revolver and accused Abdullah armed with a pistol came and threatened them that they would not be spared. Ali Nawaz attacked with spade while accused Sohafyj and Abdullah started firing with their weapons on Din Muhammad (deceased) on account of which he sustained injuries and died on the spot.
5. In pursuance of the said report, FIR No. 11 of 1991 (Ex.P/5-A) was registered and Shabhir Ahmad Sub-Inspector conducted investigation. He proceeded on the spot and saw the accused persons running after committing the murder of deceased. He along with other police officials chased and arrested accused Sohaba and recovered Revolver along with its licence from his possession. Since the remaining accused were still running, therefore, accused Sohaba was handed over to police officials on the spot and Shabhir Ahmad himself taking some other police personnel chased the remaining accused persons Ali Nawaz and Abdullah. Both of them were arrested near Goth Khundshah and an unlicensed pistol of 32 bore (article 16) was recovered from accused Abdullah vide recovery memo Ex.P/4-A. So also a blood stained spade (article 17) was recovered from possession of Ali Nawaz vide recovery memo ex.P/4-B. The I.O. Prepared parcels and came back to the place of incident and prepared recovery memo ex.P./2-A of Revolver 32 bore (article No. 1). He then prepared site plan (Ex.P/2-B). Besides this six empties of 32 bore pistol were recovered from the place of incident vide recovery memo Ex.P/2-D. One empty of 32 bore pistol was also recovered. He further recovered bullet leads of 32 bore and prepared the parcels and sent the dead body to hospital for post mortem after conducting other formal investigation.
6. All the three appellants were challenged under section 302 Qisas and Diyat Ordinance read with section 34 PPC for trial.
7. At the trial prosecution examined six witnesses to support the charge P.W.1 is Dr. Ejaz Ali Medical Officer Civil Hospital Usta Muhammad), P.W.2 is Attor Khan who arrested Sobha and is a recovery witness, P.W.3 Abdul Rehman, P.W.4 Naik Muhammad P.W.5 Shabhir Ahmad and P.W.6 Malik Muhammad Ali. The appellants led no defence nor opted for recording their statements under section 340(2) Cr.P.C.
8. Learned trial Judge after assessing the evidence on record found the appellants guilty and passed the sentence as mentioned in the preceding para.
9. Learned trial Judge settled the following points for determination;- "1. Whether deceased Din Muhammad met with violent death.
2. Whether the accused facing trial in furtherance of their common intention committed the murder by intentionally causing the death of deceased Din Muhammad by inflicting injuries with revolves, pistol and spade (Belcha).
3. What offence, if any, committed by the accused.
10. Heard Mr. Azizullah Memon for the appellants and learned Advocate-General Baluchistan for the State.
11. As far as the question that Din Muhammad received fatal injuries and met with violent death, the same was not seriously contested. However, the main question is whether the present appellants are responsible for the commission of offence of murder with common intention.
12. The important aspect of the case is that no private witness was produced by the prosecution to substantiate the charge against the appellants. Of course, according to the prosecution one Ghulam Qadir and Nasir Muhammad were nominated in the list of prosecution witnesses but they could not be produced as according to the report of process server Mohammad Sadiq said witnesses had migrated to an unknown place. We are, therefore, left to assess the testimony of the police witnesses. The learned trial Judge has believed their testimony. Although in para 22 of the judgment he observed as under:- "Though there are some minor and slight discrepancies in the evidence of the prosecution relating to place of preparation of recovery memos and distances but they can not be considered fatal to the case of prosecution which has independently been established by medical as well strong circumstantial evidence getting support from strong motive for commission of the offence..."
13. We are inclined to deal with the contradictions at a later stage as we intend to reproduce the gist of the prosecution evidence first.
14. P.W.1 Dr. Ejaz Ali conducted the post-mortem of the dead body of deceased Din Muhammad and opined that his death was result of injuries to the vital organs i.e Brain, left Lung, Lever, excessive haemorrhage and shock which were produced by the above mentioned injuries and the same were sufficient to cause death. We have already pointed out that deceased Din Muhammad met an unnatural and violent death P.W.2 Attor Khan a police constable is the main witness regarding arrest of accused Sobha Khan. According to this witness on the day of incident S.H.O, was informed about murder of a man. They proceeded to the place of occurrence and saw accused Sobha Khan running away towards east. He was caught by the witness and a 32 bore revolver was recovered from him. He produced the revolver (Article 1) in the court. He is also witness to the reoeveries such as blood-stained earth, empties, bullet lead etc. However, in his cross- examination he stated that they went to the place of occurrence by a vehicle. He further stated in cross-examination that many private persons were present and saw them running behind the accused.
15. P.W.3 Abdul Rehman, Head Constable was a formal witness of the inventory regarding blood stained shirt, trouser and Bunian (vest) of deceased Din Muhammad P.W.4 Nek Muhammad Head Constable deposed that he was posted at Police Station Usta Muhammad. On the eventful day, he along with Malik Mohammad Ali Police Inspector, Shabhir Ahmed Sub-Inspector and other police personnel was present at the Police Station. They were informed that a person was killed at Jacobabad Bus Stand, Usta Muhammad. The Police party headed by Malik Mohammad Ali reached to the place of occurrence and saw a dead body lying over there. Malik Mohammad Ali Inspector, prepared the necessary papers. Thereafter they went to Goth Kundan Shah which is at a distance of one Kilo, meter from Usta Muhammad. They saw two persons going on foot who were stopped. The said persons disclosed their names as Abdullah and Ali Nawaz, who were in possession of a pistol and a blood-stained spade respectively. They told the police that they murdered Dinoo. Accused person were taken into custody along with weapons and inventory prepared. In the cross-examination the witness stated that it was 9 a.m. When they received the information.
16. P.W.5 Shabhir Ahmed Sub-Inspector conducted the investigation. According to him he heard reports of firing while he was in the police station, he along with other police officials went to the place of occurrence and saw the dead body of the deceased. He also stated that he saw accused persons running away. With the help of police officials he arrested accused Sobha and recovered a revolver along with its licence from his possession. The accused were within their sight. They were chased and caughthold of near Goth Kundan Shah. Malik Muhammad Ali registered the case against the accused persons vide F.I.R. Ex.p/5-1. Shabhir Ahmad recovered unlicensed pistol.32 bore from accused Abdullah vide recovery memo Ex.p/4-A. He conducted and completed the investigation. According to him in their statements under section 161 Cr.P.C, accused Ali Nawaz, Sohba and Abdullah stated that wife of Sohba Mst. Rani had been kidnapped by deceased Din Muhammad and they committed his murder.
17. In the cross-examination the witness stated that all the police officials reached together to the place of occurrence. The said witness sent the crime weapons and empties to the ballastic expert whose report was produced by him as Ex.p/5-E. According to which crime bullets were fired from Revolver No.7200.
18. Challan was, however, submitted by Malik Muhammad Ali SHO. This is the sum-total of evidence brought by prosecution against the accused persons.
19. There is no cavil to the proposition that police witnesses are as good witnesses as any other private witness, provided there is no mala i.e on their part or that there is no material contradiction in their statements. We, therefore, proceed to see whether the statements of police officials are consistent, confidence inspiring and trust-worthy or the same suffer from intrinsic contradictions, therefore, cannot be relied. We start from the FIR Ex.P/5-A. One Ghulam Qadir lodged F.I.R. No. 11 of 1991 on 6.2.1991 at 11.55 a.m. Allegations made therein were that a case of abduction was pending for last two years against the first informant, deceased Din Muhammad and Nasecr Muhammad in the court of Additional Sessions Judge Usta Muhammad. Accused persons had come to attend the hearing and were proceeding towards home when near Bus Adda Usta Muhammad at about 11.30 a.m. They saw Ali Nawaz armed with a spade, Sobha armed with Revolver and Abdullah armed with a pistol near Jamila Petrol Pump. All the accused persons gave them alarm by saying that they would not be spared. Ali Nawaz attacked with spade, Sohba and Abdullah started firing with the pistol and revolver at Din Muhammad as a result of which Din Muhammad sustained injuries and fell down and soon succumbed to the injuries, this report was lodged with Usta Muhammad Police Station at 11.55 a.m. By on Ghulam Qadir the brother of the deceased.
20. From perusal of the material brought on record it appears that Sohba was arrested first near from the place of incident. Since the incident had taken place in the broad day light just near the police station Usta Muhammad where according to testimony of P.W.5 Shabhir Ahmad and others the firing reports were heard by them while they were present in the police station and Shabhir Ahmad along with police party including P.W.2 Attor Khan immediately rushed to the spot and saw accused Sohba running from the place of occurrence he was chased and arrested and a 32 bore Revolver (Article 1) was recovered from him. The depositions of P.W.2 Attor Khan and P.W.5 Shabhir Ahmad are consistent on this point. However learned defence counsel vehemently urged that accused Sohba was admittedly arrested from a public place in presence of private persons as deposed by Additional S.H.O. P.W.5. He, therefore, strenuously urged that non-inclusion of a private persons as a recovery witnesses of the revolver from the possession of accused Sohba was illegal.
Learned counsel in order to substantiate his argument read out the deposition from cross- examination. There is no cavil that the PW has candidly admitted that private persons were present but none of them was called to become a recovery witness. Learned counsel therefore while relying on 1986 S.C.M.R.462 urged that testimony of PW 2 and PW 5 may not be relied.
21. It may be observed that facts of each case generally differ and the courts have to sec the over all effect of the circumstances and then to decide whether a particular testimony is to be rejected or not. The peculiar circumstances in this case on this point are that according to PW 5 Sohba was arrested after being chased and handed over to the police officials accompanying him and he went further to arrest the remaining accused persons. Sohba was not the only accused. Thus there was not time left with the Additional SHO to complete the formalities strictly by including private witnesses when he was under an obligation to arrest the absconding accused persons who after commission of the offence had run away. In Such circumstances non-inclusion of private witnesses to our humble and considered view would not be fatal to the testimony of the police witnesses, things would have been different if the act of murder had been committed only by Sohba. Therefore we do not associate ourselves with the contention as urged by counsel for the defence.
22. Although neither PW 2 nor PW 5 was an eye-witness but their testimony provides strong circumstantial evidence against accused Sohba. They were sitting in the police station at a distance of 1 furlong and heard the gun shot reports and rushed to the spot. They saw Sohba running and he was chased and arrested. Article 1 a revolver of 32 bore was recovered from him.
Empties were also recovered from the place of occurrence. The crime weapon along with empties were sent to the Ballastic Expert whose report was produced before the trial court with the following opinion:- "The i.e 32 bore crime empties now marked as Cl to C5 were fired from above mentioned 32 bore revolver No.7200 now butt signed.
(2) Three 32 bore Crime bullets were fired from the above mentioned 32 bore Revolver No.7200".
The opinion of the Ballastic expert provides another important piece of evidence against appellant Sohba and it fully corroborates testimony of PW 2 Attor Khan and P.W.5 Shabhir Ahmad.
23. Another important piece of evidence is the motive to kill the deceased. We fully agree with the argument of defence counsel that no reliance can be placed on the statement of accused Sohba recorded under section 161 Cr.P.C, which prima-facie is inadmissible in evidence and in which accused Sohba stated that he along with co-accused committed murder of deceased Din Muhammad on account of abduction of his wife Mst. Rani by the deceased. But still it has come in the F.I.R, that an abduction case was pending against deceased Din Muhammad in the court of Additional Sessions Judge Usta Muhammad. They were proceeding to their home after attending the court in connection with the said abduction case, this evidence however, is not only admissible but was never challenged by the defence in cross-examination. Furthermore no defence was led to prove otherwise or to controvert contents of F.I.R, to the extent of abduction case being pending against the deceased and his companions. Thus accused Sohba was directly effected as his wife had been allegedly abducted by Din Muhammad. The prosecution has proved the motive to kill deceased Din Muhammad.
24. Keeping the aforementioned evidence in view the inescapable conclusion would be that accused Sohba was responsible for the murder of deceased Din Muhammad. We, therefore, maintain his conviction and sentence as passed by learned trial court.
25. Remaining two appellants namely Ali Nawaz and Abdullah were arrested near Goth Khund Shah. According to PW 5 Shabhir Ahmad and PW 6 Malik Muhammad Ali accused Abdullah and Ali Nawaz were arrested near Goth Khund Shah and a pistol was recovered from Abdullah and blood- stained spade was recovered from Ali Nawaz. Both the crime weapons were sent for examination to the Ballastic Expert and chemical analyser. The Ballastic Expert, besides the Revolver No.7200 already mentioned examined 32 bore pistol Desai made but gave no definite opinion due to lack of identifiable data. The only empty allegedly fired by the pistol thus did not match with the pistol recovered from Abdullah. However the chemical analyser concluded that spade (Belcha) as stained with human blood Group A. At the cost of repetition it may be stated that there are three witnesses who deposed about the arrest and recovery of crime weapon from two appellants and namely Ali Nawaz and Abdullah and those are PW 4 Naik Muhammad Head Constable, PW 5 Shabhir Ahmad and PW 6 Malik Muhammad Ali. It is, therefore, to be seen whether conviction of the aforementioned two appellants can be maintained on the testimony of the said three witnesses.
PW4 Naik Muhammad deposed that after preparing the necessary papers on the place of occurrence for half an hour he along with Malik Muhammad Ali and other police officials went to Goth Khund Shah which is at a distance of 1 kilometer from Usta Muhammad. There they saw two persons who were going on foot. On their asking, they stopped and told their names as Abdullah and Ali Nawaz who were in possession of a pistol and blood-stained spade respectively. At that time accused persons told that they had murdered Din Muhammad. PW5 Shabhir Ahmad the star witness of the prosecution stated that after arresting accused Sohba he was handed over to police officials who had come from Thana and he himself along with some other police officials chased the remaining accused persons who were running ahead of them. The accused persons were within their sight. They caught hold of the accused persons near Goth Khund Shah, and effected the recoveries as mentioned hereinabove. PW 6 Malik Muhammad Ali stated that after registering the FIR he along with police party went after the accused to Goth Khund Shah. A police party was also chasing the accused Ali Nawaz and Abdullah. They were arrested near Goth Khund Shah. A pistol 32 bore was recovered from accused Abdullah and a blood-stained spade was recovered from Ali Nawaz. The investigation was handed over to Shabhir Ahmad Sub-Inspector. In cross- examination he further stated that he arrested accused Ali Nawaz and Abdullah near Goth Khund Shah.
26. Now important questions arise as to the credibility of testimony of PW Naik Muhammad and PW Malik Muhammad Ali PW Naik Muhammad stated that he and Malik Muhammad Ali remained busy in preparing necessary papers at the place of occurrence for half an hour. Obviously the accused persons could not wait for them alongwith the crime weapons in their possession so that they may be chased and arrested. Another important aspect is that as per FIR the police party started from police station on 7.2.1991 whereas the occurrence had taken place on 6.2.1991. It is also important to note that according to PW 4 the persons present on the place of occurrence told them that accused had gone towards Goth Khund Shah. In these circumstances it is not believable that Muhammad Ali and Naik Muhammad chased and arrested two accused persons. However, as staled by Muhammad Ali that another police parly was already chasing the appellants Ali Nawaz and Abdullah. There, however, may be a presumption that it was PW Shabhir Ahmad who just after hearing the gun shot reports immediately went to the place of occurrence, arrested accused Sohba and then chased the remaining two appellants PW 4 and PW 6 had gone only after when the accused were already arrested.
27. We are thus left with the sole statement of PW 5 Shabhir Ahmad.
28. According to his statement both the appellants were going ahead of them within their sight.
After arresting Sohba he alongwith police party chased the accused persons and arrested them near Goth Khund Shah. However, according to Malik Muhammad Ali after reaching the place of occurrence he left Shabhir Ahmad S.I. At the place of occurrence and he himself chased the accused. This is a material contradiction because in that case Shabhir Ahmad remained on the scene of occurrence and Malik Muhammad also remained for half an hour on the spot according to PW 4. Thus it can not be said that two appellants were the same persons who committed the offence and ran away.
29. Additionally as far as recovery of pistol from Abdullah is concerned, no evidence has come on record that any firing was made from the said pistol at the deceased particularly so when it was examined by the Ballastic Expert and he did not give any positive opinion regarding use of the weapon in commission of the offence. Furthermore the recovery itself is doubtful in view of contradictory statement of PW Naik Muhammad and Malik Muhammad Ali on the one had and PW Shabhir Ahmad on the other had. As far as recovery of spade is concerned it does not appeal to reason that accused Ali Nawaz after committing murder of deceased took alongwith him the spade through out for about one kilometer particularly when he was being chased by the police party, It is not natural that in the circumstances he did not try to throw the spade but continued to carry it till such time that police arrested him.
30. For above reasons we are of the view that prosecution failed to prove the case against the present two appellants namely Abdullah and Ali Nawaz beyond reasonable doubts. Thus giving benefit of doubt to appellant Ali Nawaz and Abdullah we hereby set aside their conviction and sentence for an offence under section 302/34 PPC as recorded by learned Additional Sessions Judge Usta Muhammad. So also the recovery of pistol being doubtful we allow the appeal of Abdullah and set aside his conviction recorded under section 13-E of Arms Ordinance.
31. The upshot of the aforementioned discussion is that we reject the appeal filed by Sohba and maintain his conviction and sentence as recorded by learned Additional Sessions Judge Usta Muhammad. However, giving benefit of doubt to remaining two appellants namely Ali Nawaz son of Mohammad Yaqoob and Abdullah son of Mohammad Hayat we set aside their conviction.
Resultantly appellants Ali Nawaz and Abdullah Shah be released forthwith if not required in any other case.