1. ' MUKHTAR AHMED JUENJO, J.-- Appellant Abdul Khaliq has assailed a judgment of the High Court of Baluchistan dated 3-3-1994 dismissing his appeal against his conviction and sentence by the learned Sessions Judge, Quetta. Leave to appeal was granted to the appellant by this Court on 3- 5-1994.
2. ' Appellant Abdul Khaliq with six others including Khudaidad was tried by the Sessions Judge (Ad Hoc), Quetta for having committed the murder of Abdul Wahab on 1-7-1991 at 7-15 a.m. At Chaman.
3. ' According to the F.I.R. Lodged by Abdul Rashid brother of deceased Abdul Wahab, the latter was going on a motor-cycle on 1-7-1991 at 7-15 p.m. At Chaman, when he had to slow down his motor- cycle due to a speed breaker. On seeing this some 8 persons including appellant Abdul Khaliq, fired with pistol at Abdul Wahab. Abdul Wahab received the pistol-shoi, and fell down in the next street.
4. Injured Abdul Wahab was rushed to the local hospital where he succumbed to his injuries. In his F.I.R., Abdul Rashid stated that initially he was resident of Killi Muhammad Umar, Chaman where the appellant and the co-accused also lived but they had been treating him harshly and hence he had migrated to Killi Rose Din. The case was registered by Levies Police, while the investigation was carried on by Nazar Hussain, Naib-Tehsildar, Tehsil Chaman. After due investigation, the case was placed in Court.
5. ' At his trial with the co-accused,. Appellant Abdul Khaliq pleaded not guilty and so also the co- accused including Khudaidad.
6. ' The prosecution examined complainant Abdul Rashid P.W.3 and witnesses Dr. Akhtar Muhammad P.W. I, Muhammad Shah P.W.2. Abdul Jabbar P.W.4, Mir Qalam P.W.6 and Nazar Hussain P.W.7. In his statement under section 342, Cr.P.C., the appellant denied the prosecution allegations and alleged false implication. He also took the plea of alibi and alleged that he was falsely implicated and that the eye-witnesses were interested. Defense side examined Haji Lal Muhammad D.W.1 and Jalat Khan D.W.2. At conclusion of the trial the learned Sessions Judge under his judgment dated 25-9- 1993 convicted appellant Abdul Khaliq and co-accused Khudaidad under section 302/34, P.P.C.
7. And sentenced them to suffer life imprisonment and to pay fine of Rs five lacs each or in default to suffer rigorous imprisonment for five years. Remaining co-accused, namely, Muhammad Qasim, Khanan, Abdul Manan, Abdul Shakoor and Haji Kashmir were acquitted, after being given benefit of doubt.
8. ' The appellant and co-accused Khudaidad challenged their conviction and sentence before the High Court of Baluchistan under Criminal Appeal No,59 of 1993. A learned Division Bench of the High Court decided the appeal on 3-3-1994, by dismissing appeal of the appellant and acquitting co- accused Khudaidad. Hence this appeal with leave of the Court.
9. ' Mr. Yahya Bakhtiar, learned counsel for the appellant, argued that Chaman Town was situated in a settled area where normal law was applicable and case against the appellant should not have been investigated by the NaibTehsildar in place of police. It was further argued that in the F.I.R. 8 persons were nominated as .Accused and out of them seven were tried, out of which five were acquitted at the trial stage and one was acquitted at appellate stage. Dealing with the evidence on record, the learned counsel for the appellant argued that the story given in the F.I.R. Was materially different from the story given by eyewitnesses who were produced by the complainant before the Naib-Tehsildar for their 161 Cr.P.C. Statements after one month and three days of the incident.
10. ' Complainant Abdul Rashid was said to be brother of deceased Abdul Wahab but he had not seen the incident. The learned counsel further argued that the medical evidence was in conflict with ocular evidence. The learned counsel thought the incident to be improbable because the alleged assailants had no previous information that Abdul Wahab would pass through the scene of incident on 1-7-41991 at 7-00 or 8-00 p.m. It was also argued that the contents of the F.I.R. Were vague as all the eight persons nominated in the F.I.R. Could not have fired at the deceased, while name of the assailant was not specifically given. The learned counsel for the appellant referred to page No,118 of "The Islamic Criminal Justice System" by M. Cherif Bassiouni and argued that testimony of a witness can be discarded on the ground of blood relation, on the ground of enmity or on the ground of partiality. The learned counsel pointed out difference of opinion between the trial Court and the Appellate Court and argued that the trial Court has discarded the evidence of defense witnesses on the ground of their being related to the appellant, while the Appellate Court took view that mere relationship of a witness is not enough to discard his evidence. In support the learned counsel cited the cases of Said Noor v. Crown (PLD 1952 Baluchistan 59) and Muhammad Rahim v. Crown (PLD 1951 Baluchistan 39).
11. Mr. Ijaz Yousaf, learned Additional Advocate-General, Baluchistan appearing for State, defended the investigation by the Naib-Tehsildar on the ground that regular law was not applicable at Chaman. He pointed out that the incident occurred in July, 1991 when Criminal Law (Special Provisions) Ordinance, 1968 was in force. Said Ordinance remained in force until 10-4-1993 when it was struck down as complete negation of the fundamental rights in a judgment Government of Baluchistan v. Azizullah Mernon (PLD 1993 Supreme Court 341). In respect of the investigation of the case by Naib-Tehsildar, the learned Additional Advocate-General alternatively argued that even if the investigation was not according to law, that would not be fatal to the prosecution and cited the case of The Crown v. Mehar Ali (PLD 1956 Federal Court 106). Dealing with the ocular evidence, the learned Additional Advocate-General pointed out that P.W. Abdul Rashid alone is related to the deceased, while none of the eye-witnesses is related to the deceased. He emphasized on the evidence of Abdul Jabbar P.W.4 whom he called star eye-witness. The learned Additional Advocate-General conceded that statements of eye-witnesses Abdul Jabbar and Muhammad Shah were recorded on 4-8-1991 by the Naib-Tehsildar. The learned Additional Advocate-General denied existence of any inconsistency between the ocular evidence and the medical evidence and argued that even if the ocular evidence was at variance with the medical evidence, that would not affect the case of prosecution on merits and cited the case of Saeedullah Khan v. The State (1986 SCM R 1027).
12. ' Mr, Tariq Mehmood, learned counsel for the complainant argued that the investigation was being done by Tehsildars and Naib-Tehsildars in the area in question and that there was nothing wrong with such investigation.
13. Normally concurrent findings by the Courts below are not to be interfered with, except when there is misreading of evidence or non-consideration of an important piece of evidence by the Courts below. In the case of Muhammad Rahim v. The Crown (PLD 051 Baluchistan 39) the then Judicial Commissioner, Baluchistan, dealing with powers of the High Court under section 439 Cr. P.C. Took view that such powers are virtually unfettered but it is not normally the practice to interfere particularly in a case where there are two concurrent findings of fact in the lower Courts, unless it is abundantly clear that the judgments of the lower Coutts are perverse and have led to clear miscarriage of justice. In the instant case, the High Court was dealing with an appeal and not with a revision. The other case cited by learned counsel for the appellant was of Said Noor (PLD 1952 Baluchistan 59) where the view taken was that the provisional powers, particularly when the findings of fact 01 the two lower Courts are concurrent, are very rarely exercised. In said case in spite of serious irregularities in the case, conviction of the petitioner was maintained but his sentence was reduced to the one already undergone. Both these cases are inapplicable to the instant case where the case was not examined by the High Court while exercising its provisional jurisdiction.
14. ' According to complainant Abdul Rashid P.W.3. His brother Abdul Wahab was fired at, while he had slowed down his motor-cycle due to a speed breaker at Mall Road, Chaman. After receipt of fire- arm shot, injured Abdul Wahab was said to have collapsed, while running in front of house of Abdul Hameed near Hassan Mosque. Complainant owned his F.I.R. Exh.P/3-A. Neither in his deposition nor in his F.I.R. Exh.P/3-A, the complainant named the person who fired at Abdul Wahab. Complaiant is not eye-witness to the incident, as he admitted in his cross-examination that he was in his house at the time of the incident and that he was informed of incident by P.Ws. Mir Qalam P.W.6 and Abdul Jabbar P.W.4 none of whom claimed to have narrated the incident to the complainant. The same complainant further stated in his cross-examination that he came to know of the incident when body of his brother was brought from the hospital to his house which is 1 or 1-1/2 miles away from Wardat. The complainant apprehended for preceding two years, that his brother would not be spared and yet he did not complain before anybody. The complainant does not appear to be a trustworthy witness as he got removed name of co-accused Muhammad Qasim from the investigation, as per Nazar Hussain P.W.7, on money consideration, as alleged by defense. Name of co-accused Muhammad Qasim was, however, put in column 2 of the challan as per NaibTehsildar Nazar Hussain P.W.7.
15. ' The much talked about witness Abdul Jabbar P.W.4 claimed to have seen at Mall Road, Chaman appellant Abdul Khaliq, firing at Abdul Wahab, who ran and fell down near a curve. This witness claimed to have taken the injured to the hospital, where the latter died. In his cross-examination P.W. Abdul Jabbar said that he saw from distance of 10/15 paces deceased Abdul Wahab being chased by Abdul Khaliq. That Khudaidad (acquitted accused) was simply standing there, armed with a pistol. Abdul Jabbar admitted to the defense suggestion that he was informed by deceased Abdul Wahab that he was fired at by Abdul Khaliq and Khudaidad. This statement was sought to be used by learned Additional Advocate-General against the appellant, as his admission to the effect that he had fired at the deceased. Even if putting of such question in cross-examination by the defence counsel, amounts to an admission, the same cannot bind the appellant. In a criminal case an accused is not bound by the admissions made by his counsel. Reference can be made to the case of Sh. Abdul Hamid and another v. The State (1973 PCr.LJ 858) which lays down correct principle of law. Abdul Jabbar in his cross-examination contradicted his earlier statement by saying that Abdul Wahab had already received the bullet-shot when he saw him along with the appellant for the first time. This conflicts with claim of P.W. Abdul Jabbat made in his evidence that he saw Abdul Khaliq firing at Abdul Wahab. Had P.W. Abdul Jabbar seen Abdul Wahab being fired at by Abdul Khaliq, he would not have questioned the former (Abdul Wahab), as to , who had caused him injuries. All this shows that P.W. Abdul Jabbar has spoken lie about having seen the appellant firing at Abdul Wahab. P.W. Mir Qalam D deposed that he was going towards his house when he saw two persons chasing each other in the midst of firing. That one of them received bullet-shot and fell down, while the other one escaped. Mir Qalam did not name either the assailant or the vicitm. He was declared hostile. He denied having told police that the appellant was running and firing at the deceased with a pistol and that Abdul Wahab received the bullet- shot and fell down due to firing and that the appellant escaped. Even if Mir Qalam implicated the appellant in his 161, Cr.P.C. Statement, that is of no evidentiary value. Lastly, there is evidence of Muhammad Shah P.W.2 to the effect that Abdul Wahab was being chased by the appellant carrying a pistol with which he was firing. He added that an old person, namely, Khudaidad was also running with the appellant. That Abdul Wahab fell down near a mosque and died. In his cross- examination Muhammad Shah admitted that he was approaching the mosque of Abdul Sattar when he heard noise of firing and was told by the people that Abdul Wahab was being fired at.
16. Muhammad Shah added that he went to the scene of incident after the firing and saw Abdul Wahab running towards the mosque and falling down. Muhammad Shah claimed to have seen the accused running away towards an open ground. Admissions made by Muhammad Shah mentioned above, show that he could not have seen the incident. He changed his statement by saying that E when he heard the-fire-arm shots he was going from mosque of Abdul Sattar to mosque of Muhammad Noor. Again he changed his statement by saying that when he heard firing he was going to mosque of Abdul Sattar from mosque of Muhammad Noor. Variance in evidence of this witness makes his testimony unreliable.
17. Naze -Hussain P.W.7. Who investigated the case as Naib-Tehsildar, deposed that he recorded the F.I.R. On J-7-1991 while statements of Mir Qalam and Abdul Qahir were recorded on 21-7-1991. In his cross-examination Nazar Hussain stated that 'statements of Abdul Jabbar and Muhammad Shah were recorded on 4-8-1991 when they were brought by the complainant. He admitted that all the eye-witnesses were examined at the instance of the complainant. F ' There is no explanation furnished by the prosecution for examination of Mir Qalam after 20 days of the incident and for examination of Abdul Jabbar and Muhammad Shah after one month and three days of the incident. It is a settled position of law that late recording of 161, Cr.P.C. Statement of a prosecution witness reduces its value 'to nil unless there is plausible explanation for such delay.
18. ' Both Muhammad Shah and Abdul Jabbar claimed to have seen the victim being chased by the appellant. Dr. Akhtar Muhammad P.W.1 who performed autopsy on dead body of Abdul Wahab, found on the dead body an entrance wound on umbilical region and another entrance wound on left hypochondria with no exit wound.
19. These injuries show that the victim was fired at from front and not from behind, as witnesses Muhammad Shah and Abdul Jabbar would like the Court to believe. Such conflict between the ocular evidence and medical evidence cannot be called a simple variance and ignored. In the case of Mardan Ali v. Gulist and others (1980 SCM R 889) it was observed that ocular evidence as to the time of the occurrence cannot be accepted to an extent inconsistent with medical evidence. In the case of Saindad and others v. The State (1972 SCM R 74) the accused was acquitted on the ground of medical evidence being inconsistent with account of the occurrence as given by eye- witnesses. In the case of.Saeedullah Khan v. The State (1986 SCM R 1027) cited on behalf of the State, the conflict between the medical evidence and the ocular evidence was not as much, as in the instant case and sentence of the appellant and acquit him. Such short order was passed on For the foregoing reasons, we allow this appeal, set aside the conviction I 14-12-1994 and these are reasons for the same.
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