1. ' This appeal arises from the judgment, dated 23-5-1996 of learned 1st Additional Sessions Judge, Khairpur by which he convicted the appellants under sections 302 read with 148 and 149, P.P.C. And sentenced them to suffer R.I. For imprisonment for life and to pay a fine of Rs,10,000 each or in default to suffer further R.I. For 1 year. They were also convicted under sections 147 and 148, P.P.C.
2. And sentenced with imprisonment for 2 years and fine of Rs,2,000 each and in default to suffer R.I.
3. For 2 months more. The fine if recovered was ordered to he given to the legal heirs of deceased under section 544-A, Cr.P.C. Both the sentences were ordered to run concurrently and the appellants were also provided a benefit of section 382-B, Cr.P.C. In the computation of their sentence.
4. ' The facts forming the case of the prosecution are that on 16-8-1985 complainant Muhammad Rafique lodged the case at Police Station Ahmedpur alleging therein that on the same day he along with his father Ameer Bux went to supervise their lands and P.Ws. Khair Muhammad, Ghulam Mustafa Sandelo and Chaneesar Khoso were also present in their adjacent lands and it was at about 7 a.m. When Ameer Bux father of complainant went towards the garden of P.W. Khair Muhammad. It is further mentioned that at that movement 5 armed persons emerged there from the garden of Sher Muhammad and allegedly gave Hakals to the father of the complainant and asked him that he will not be spared and subsequently they fired direct at him. Complainant as well as P.Ws. Identified them to be Sattar son of Ghulam Muhammad, appellant Muharam son of Meero with guns, Mukhtiar alias Mukhi son of Ghullam with revolver, Meero son of not known and one unidentified person with pistols. These four identified persons were Langah by caste and were resident of Baluchistan. Complainant and P.Ws. Came running towards the Wardat and raised cries on which the above 5 persons ran inside the bananas garden of Sher Muhammad. Complainant found his father dead having sustained fire-arm injuries on his chest and other parts of the body.
5. On the cries as well as fire reports P.Ws. Qasim, Ghulam Hyder and others also arrived at the Wardat who were appraised the above facts. About motive complainant has alleged that 4/5 years ago the above nominated accused were residing in his village and co-accused Sattar had leveled the allegation of Karap on his wife with Ghulam Shabbir complainant's cousin and they then migrated from complainant's village to Usta Muhammad and had expressed that they will take revenge.
6. ' After usual investigation police put up challan against co-accused Meero, Mukhtiar, Sattar and appellants Muharam and Ghullam. During the pendency of trial accused Mir Muhammad expired and proceedings against him were abated whereas co-accused Mukhtiar and Sattar were declared absconders.
7. ' Charge was framed against the appellants under the abovementioned sections to which they pleaded not guilty and claimed trial.
8. ' Prosecution in support examined P.W. No,1 Dr. Ghulam Nabi, who has produced post-mortem, P.W.2 Muhammad Rafique, who has produced the F I.R., P.W.3 Khair Muhammad, has produced his 164, Cr.P.C. Statement, P.W.4 Ghulam Mustafa, who has produced his 164, Cr.P.C. Statement, P.W.5 Qasim, P.W.6 Chaneesar who have produced their 164, Cr.P.C. Statements P.W.7 Ghulam Hyder, P.W.8 Qurban Ali, who have produced the Mashirnama of Wardat, inquest report, Mashirnama of recovery and arrest, P.W.9 Ayaz Ahmed, P.W.10 Abdul Karcem and P.W.11 Ghulam Ali, the learned A.P.P. Gave up P.W.12 Ali Asghar, who has produced the receipt. Lastly A.P.P. Closed the side.
9. ' The appellants in their statement under section 342, Cr.P.C. At trial denied the allegations of the prosecution and claimed innocence. They neither examined themselves on oath nor led any evidence in their defence. Appellant Ghullam in his statement has stated as under:-- "Mst. Basran is my niece, I have given the hand of Mst. Bastan to grandfather of complainant. The husband of Mst. Basran was expired prior to this incident, Mst. Basran demanded share of property of her husband from complainant party through me. On which they were annoyed and extended threats for the dire consequences so only this incident took place. Which was quite unseen till recovery of dead body from corpse-bearer. Thereafter, with consultation of police, complainant involved me and other co-accused falsely, in this case. It is on the record that accused (deceased)
10. Mir Muhammad was admitted in the Sandeman Provincial Hospital, Quetta from 12-8-1985 to 21-8- 1985 (date of incident). Prior to this incident till today I used to reside in village Ahmedpur near to complainant party. Complainant party knows me very well. I produce photo copy of N.I.C. No,439- 30-123039, dated 23-4-1975 and admission slips of deceased Mir Muhammad and medical certificate issued by Medical Officer Dr. M.S. Hashmi, Professor of Medicines, Bolan Medical College, Quetta as Exhs.25 to 29 respectively. I am. Innocent and pray for acquittal."
11. ' The trial Court after framing the points for determination and appraisal of the evidence, convicted and sentenced the appellants.
12. ' Mr. Sardar Muhammad Ishaque learned counsel for appellants and Mr. Liaqat Ali Shar, A.A.-G.
13. Have been heard at length.
14. ' Learned counsel for the appellants argued that in fact incident is witnessed one and the presence of eye-witnesses at the place of incident is unnatural and not convincing as it is not supported by any independent witness. He further contended that there are such material contradictions in the statements of the prosecution witnesses and also inconsistency in ocular and medical evidence that an inference can easily be drawn about the genuineness of the case of the prosecution. He next submitted that investigation of the case has been made dishonestly and neither empties were collected from the spot and sent to Ballistic Expert nor blood-stained earth was seized and sent to chemical examiner so much so the recovery of crime weapon was also not affected from the appellants, therefore, the appellants are entitled to the benefit of doubt. He argued that P.W.
15. Chaneesar has been incorrectly termed to be an independent witness by the trial Court actually he is not an eye-witness and if his statement is taken in consonance with the statements of other P.Ws., it becomes clear that he has not seen the incident. He lastly contended that appellant Ghullam has been substituted as an accused at the place of one unknown culprit. It is quite unbelievable that the complainant and the P.Ws. Identify appellant Muharram and other accused near relative of appellant Ghullam but do not identify him creates serious doubt about the presence and identification of appellant Ghullam. His identification has no legal value as neither memo. Of identification parade is produced in evidence nor concerned Magistrate is examined at the trial, even no question about holding of identification parade and picking up the P.Ws. Has been asked from appellant Ghulam in his statement under section 342, Cr.P.C., therefore, his statement has got no value in the eye of law as an incriminating evidence has not been put to him in his statement. In support of contentions he relied upon the following case-law:--
(1) Hazratullah and another v. The State 1968 SCM R 1361;
(2) Muhammad Iqbal v. The State 1984 SCM R 930; (3). Shaikh Muhammad v. Ghulam Muhammad and others 1985 SCM R 95:
(4) Munawar Hussain alias Asghar Ali v. The State 1991 SCM R 1601; and
(5) Muhammad Farooque and 2 others v. The State PLD 1976 Lah.
16. 1403.
17. ' Mr. Liaquat Ali Shar, A.A.-G. Vehemently opposed the contentions raised by appellants' counsel and stated that ocular evidence furnished by complainant Muhammad Rafique and eye-witnesses Khair Muhammad, Chaneesar and Ghulam Mustafa, is supported by medical evidence and the injuries on the body of deceased are fully in consonance with the number of the accused in the case. He argued that appellant Muharram is not only identified and nominated in the F.I.R. With a specific role of firing from gun at deceased Amir Bux but has been fully implicated by complainant and the above witnesses in their respective statements and there is sufficient evidence collected against him for proving his conviction. About appellant Ghullam he has contended that his name is not mentioned in F.I.R. And is implicated on the evidence of identification parade which is defective and has no objection if his appeal is accepted.
18. ' I have anxiously attained to the arguments addressed by the learned counsel for the appellants and State.
19. I feel persuaded to agree with the contentions of learned A.A.-G. And find that appellant Muharram is not only nominated in F.I.R. With a specific role of firing from gun at deceased Ameer Bux but all the eye-witnesses mentioned above have fully implicated him saying that he was armed with gun and had come in the company of co-accused Sattar, Mukhtiar, Meero and one unidentified person later on identified to be appellant Ghullam and caused gunshot injuries to deceased Ameer Bux.
20. The above ocular evidence is fully corroborated by the medical evidence and P.W. Ghulam Nabi the medical officer in his deposition has disclosed the presence of 5 wounds of entry and exit over the body of deceased Ameer Bux and the cause of death is shown to be the result of fire-arm injuries. In order to further appreciate the ocular evidence of eyewitnesses, it is necessary to discuss the relevant portions of the depositions of these witnesses.
21. ' Complainant Muhammad Rafique in his examination-in-chief has stated that deceased was his father and about 3/4 years back at about 7 a.m. He along with his father had gone to visit their crop and he was standing in the fields whereas his father went to the garden of Khair Muhammad Sandilo and at that time P.Ws. Khair Muhammad, Ghulam Mustafa and Chaneesar were also standing there and 5 accused persons namely Sattar, Mukhtiar, Meero and appellant Muharram and one unidentified person emerged from the bananas' garden of Sher Muhammad Sandilo.
22. Accused Sattar and appellant Muharram were having guns whereas accused Mukhtiar with pistol and Meero and unidentified person with revolvers. Accused Sattar hurled abuses to his father and all the accused including appellant fired at him directly, which hit on his chest and other parts of the body and subsequently died. On the cries of the father and witnesses and fire-arm report P.Ws.
23. Qasim and Ghulam Hyder Khoso also arrived at the Wardat. Complainant in his deposition has categorically stated about the motive for the murder saying that about 4/5 years prior, accused Sattar was residing in his village and had levelled allegation of Karap of his wife with Ghulam Shabbir his cousin. They had shifted to Jacobabad side and has taken the revenge of Karap from complainant's father Ameer Bux as the alleged Karo was his nephew.
24. P.Ws. Khair Muhammad, Ghulam Mustafa and Chaneesar in their respective depositions have stated the similar facts on the factum of incident and the motive fully implicating appellant Muharram with the commission of offence. Though all of these witnesses have been cross- examined at length by the defence counsel but their evidence has not been shattered at all. This all shows that the case against appellant Muharram is fully established by the above ocular as well as medical evidence and there seems to be no justification to allow his appeal and set aside his conviction and sentence.
25. ' In case of Muhammad Farooque and 2 others v. The State PLD 1976 Lah. 1403 and Muhammad lqbal v. The State 1984 SCM R 930, Lahore High Court as well as Honourable Supreme Court have held that the mere absence of enmity against witness held not sufficient to bring home charge of murder if evidence of such witnesses is found to he inherently unreliable.
26. ' I respectfully disagree with the facts and circumstances of these cited cases which are distinguishable from the facts of the present case as in this case appellant Muharram has not been able to prove that the witnesses are false and unreliable. The case of Shaikh Muhammad v.
27. Ghulam Muhammad and others 1985 SCM R 95 is not applicable with the facts of the present case as the cited case is about the appeal against acquittal. The case of Hazratullah and another v. The State 1968 SCM R 1361 also is not applicable with the facts of the case in hand and is entirely on different facts and circumstances.
28. In these circumstances, the appeal in respect of appellant Muharram is dismissed, conviction and sentence passed against him by trial Court is maintained.
29. ' So far appellant Ghullam's case is concerned, he was not nominated in F.I.R. Though he is said to be near relative of other accused. He was picked up in the identification parade by complainant Muhammad Rafique and P.Ws. Khair Muhammad, Ghulam Mustafa and Chaneesar. In their respective statements though complainant and P.Ws. Khair Muhammad and Ghulam Mustafa have stated that they picked him up in the identification parade arranged before Magistrate to be the accused in the case but P.W. Chaneesar in his examination-in-chief has said that appellant Ghullam was put to identification by the police at the police station. He has further stated that appellant was not put to identification before any Magistrate in his presence. Admittedly neither Mashirnama of arrest of appellant Ghulam nor that of identification parade have been brought on record nor the Magistrate holding the parade was examined at trial. So much so the police officials who arrested him and got his identification parade before the Magistrate has also not been examined. In his statement under section 342, Cr.P.C., this incriminating piece of evidence of arranging of identification parade has not been put to him, therefore, the same cannot be considered as evidence against the appellant Ghullam. In case of Munawar Hussain alias Asghar Ali v. The State 1991 SCM R 1601, Honourable Supreme Court has set aside the conviction and acquitted the accused on the ground that the circumstances of the last seen evidence was not put to accused when he was examined under section 342, Cr.P.C.
30. ' In case of Abdul Salam Mola v. Crown PLD 1955 FC 129 it has been held as under:-- "Compliance with section 342 of the Criminal Procedure Code is absolutely essential in accordance with its terms, and where this is not done, the conviction might be quashed, or the trial might be set aside, if some prejudice appears to have been caused to the accused. Particular care should be taken that the important elements in the prosecution case which need some explanation from the accused should be put to him in a succinct form and his reply recorded. It is wholly against the provisions of the Criminal Procedure Code or the demands of natural justice that a person should be convicted on the basis of something, of which he was not given any notice, and to which he was never required to give his own reply."
31. ' In the case of Din Muhammad v. Crown 1969 SCM R 777, it has been held by Honorable Supreme Court that circumstances from which inference adverse to accused sought to be drawn should be put to accused when he is questioned under section 342, Cr.P.C.
32. ' For the foregoing reasons I am convinced that the prosecution has not been able to prove case against appellant Ghullam, he is awarded the benefit of doubt. His appeal is allowed. Conviction and sentence in his respect is set aside and is accordingly acquitted. He shall be released forthwith if not required in any other case.