1. IFTIKHAR MUHAMMAD CHAUDHARY, J.---Appellant Fateh Muhammad feeling dissatisfied from the order dated 14th November, 1995, passed by Sessions Judge, Sibi Division, whereby respondents were acquitted of the charge of murdering his brother, has filed instant appeal.
2. Briefly the prosecution case is that on 3rd October, 1994, respondents Mehmood Khan son of Manoor Khan, Muhammad Ismail son of Phunal and Rehmatullah son of Essa Khan committed murder of Nabi Bakhsh, inside his house, by making fire shots, in presence of P.W. Niaz Muhammad, younger brother of deceased and Mst. Marvi, widow of deceased. P.W. Niaz Muhammad, who was present in home, went to inform P.W. Fateh Muhammad, who was sitting in a shop in Sibi Bazar, as such, vide F.I.R. Exh.P/A), a case was registered under section 302/34 P.P.C., at Police. Station, Saddar, Sibi. It is alleged in F.I.R. being No.71 of 1994, that 2/3 fatal shots were fired at deceased by respondent Mehmood, whereas co-respondents Ismail and Rehmatullah, caught hold of deceased. Motive was alleged against one of the respondent Muhammad Ismail, that a theft case was lodged by him against deceased Nabi Bakhsh, in which, he was acquitted of the charge by Sessions Judge, Sibi on 22nd September, 1994, therefore, according to complainant due to this grudge, respondents committed the murder of Nabi Bakhsh. P.W. Abdul Karim, S.H.O. visited the place of incident, where he prepared the Inquest report (Exh.P/G) site plan (Exh.P/H) and also secured blood stained earth from the spot vide Memo. Exh.P/D. He also recovered two empties of .30 bore pistol vide memo. Exh.P/E. On the arrest of respondent Mehmood, one pistol and four live cartridges were recovered from his possession vide Memo. Exh.P/F. On completion of investigation, respondents were sent up to answer the charge in the Court of Sessions Judge, Sibi.
3. Charge framed against all the respondents under section 302/34, P.P.C., was denied by them, and they claimed trial. To prove its case, prosecution led evidence of P.Ws. Fateh Muhammad, Niaz Muhammad (an eyewitness) Mst. Marvi (widow of deceased Nabi Bakhsh, an eye witness, but declared hostile), Dr. Abdul Ghaffar, Medical Officer, who produced Medical Certificate (Exh.P/B), Zaka-ul Hassan, Police Constable, witness of blood stained clothes of deceased, Muhammad Ibrahim, who saw accused running away from the side of the house of Mian Khan, after incident, but could not identify them, Allah Dinna, recovery witness of blood-stained earth, Abdul Rehman, recovery witness of pistol, Abdul Karim, S.H.O./I.O., Rafiullah, Second Investigating Officer, and Syed Abdullah, Chemical Expert.
4. Respondents in their statements under section 342, Cr.P.C. denied the prosecution case, however, they did not examine themselves on oath, nor produced anybody in defence.
5. Learned Trial Court after completion of evidence, pronounced the Judgment on 14th November, 1995, whereby charge was altered and they were convicted under section 456, P.P.C. and sentenced to two years R.I. each and to pay fine of Rs,1,000 or in default, they have to further undergo three months R.I. each, with benefit of section 382-B, Cr.P.C.
6. Respondents challenged their conviction before this Court in Criminal Appeal No.301 of 1995, which was disposed of on 24th December, 1995, in view of the statements, made by their counsel Mr. Riaz Ahmad, for reduction of the sentence, to the extent, which they had already undergone. Relevant para. from the said judgment is reproduced hereinbelow:-- "Thus, conviction under section 456, P.P.C., is maintained. However, the sentence is reduced to that of which, the appellants have already undergone, with fine of Rs,1,000 each and in default in payment of fine they will further undergo three months R.I.
7. With the above modification in sentence, the appeal is disposed of."
8. Against the above order, appellant Fateh Muhammad filed Criminal petition for leave to Appeal being No.16-Q of 1996, before the Hon'ble Supreme Court, which was dismissed on 14th May, 1997.
9. Operative para. from the judgment reads as under:-- "It would appear that the petitioner herein had filed Criminal Appeal No.306 of 1995 against the acquittal of the respondents for the commission of the murder of his brother Nabi Baldish which is still pending in the High Court. Since the acquittal appeal filed by the petitioner is pending before the High Court, any order passed by this Court in this petition is likely to prejudice the case pending in the High Court. We would, therefore, refrain from passing any order in this petition. Also this petition is barred by delay of 71 days, we, therefore, dismiss this petition as barred by time. We may, however, clarify that this will have no effect on the appeal pending in the High Court which will be decided on its own merit."
10. It may be observed that according to record, when Appeal of respondents being No.301 of 1995, was pending, appellant also filed instant appeal, which was admitted on 18-12-1995. It appears that when Criminal Appeal No.301 of 1995, was being argued, no one pointed out that appellant has also filed appeal against the acquittal of respondents. However, on 26th March, 1996, learned counsel appearing for parties, brought in knowledge of Division Bench that Single Bench of this Court, comprising of (Justice Iftikhar Muhammad Chaudhry), has already passed order on the appeal, filed by respondents, during pendnecy of instant appeal and against the said order, petition for leave to appeal, is pending before the Honourable Supreme Court. Therefore, Mr. M.S. Rukhshani, learned counsel, for appellant Fateh Muhammad, requested that the matter may be adjourned sine-die, so that Hon'ble Supreme Court may decide the appeal. As such, order was passed accordingly.
11. As now criminal petition for leave to appeal filed by appellant before Hon'ble Supreme Court has been dismissed vide order noted hereinabove, therefore, this Appeal has been fixed for regular hearing.
12. Mr. M.S. Rukhshani, learned counsel for appellant, contended that P.W. Niaz Muhammad has furnished co-herent and confidence inspiring evidence about the commission of murder by respondent. His statement gets corroboration from evidence of P.W. Muhammad Ibrahim, medical evidence, recovery of pistol and empties, blood stained earth from inside the house of deceased, where he was murdered and judgment of trial Court itself, to the extent of charging the respondents for offence of lurking house tress pass for committing offence falling within the mischief of section 456/34, P.P.C., whereby they were convicted and sentenced, which has attained finality, because they conceded to it, by praying for reduction in sentence, through their Advocate, before this Court in Criminal Appeal No.301 of 1995. In as much as this judgment has been confirmed by Hon'ble Supreme Court, as leave to appeal was not granted to appellant. According to learned counsel, as the respondents who were convicted and sentenced did not challenge the same, therefore, the judgment can be considered against them, as a strong circumstance, in terms of Articles 54 and 57 of the Qanoon-e-Shahadat Order, 1984. He further contended that learned Sessions Judge, by passing a shocking and ridiculous order, based on misreading of the statement of P.W. Niaz Muhammad, has illegally acquitted the respondents from the charge of murder. It was also urged by him that impugned judgment has proceeded on wrong assumption of facts, therefore, it deserve interference by this Court in view of the principles laid down by Hon'ble Supreme Court for converting acquittal into conviction, reported in PLD 1985 SC 11 and 1993 SCM R P-550.
13. On the other hand, Mr. Riaz Ahmad, learned counsel for respondents, contended that prosecution has miserably failed to prove the guilt of murder against respondents. Except the statement of P.W.
14. Niaz Muhammad, a minor of 12 years age, there is no other incriminating convincing evidence to saddle the respondents with the liability of crime. According to him, as for as P.W. Fateh Muhammad is concerned, he is not the witness of incident. P.W. Marvi, widow of deceased, who even being his wife, has not supported the prosecution, therefore, she was declared hostile, as such solely on the statement of P.W. Niaz Muhammad, acquittal earned by respondents cannot be converted into conviction. As for as the judgment of trial Court to the extent of declaring respondents, guilty for the offence falling under section 456/34, P.P.C. is concerned that cannot be treated as strong circumstance against them because the trial Court while acquitting them from the charge of murder, did not rely on this aspect of the case.
15. Mr. Noor Muhammad Achakzai, learned Additional Advocate-General, supported to the contentions of Mr. M.S. Rukhshani, Advocate and prayed that respondents be convicted/sentenced under section 302/34, P.P.C., because the prosecution has successfully established the charge, against them.
16. ' It would be appropriate to note at this stage, that initially P.W. Niaz Muhammad and P.W. Marvi, widow of deceased were the witness of incident. As for as latter is concerned, her evidence cannot be used by either of the party i,e, prosecution or defence, because she has been declared hostile.
17. So for the former witness Niaz Muhammad is concerned, he is the only witness, who could either prove or disprove the prosecution case. He was minor of 12/13 years, at the time of recording his statement before the trial Court. Learned Court before commencement of recording his evidence, examined his capability of making statement and on having been satisfied, proceeded to record his evidence. In this behalf a note has also been left on his statement. According to his testimony, he was sleeping with his father in his house, when he heard gun shot report, on which, he rushed towards the room of his deceased brother and saw that accused Rehmatullah and Ismail had caught hold of deceased and Mehmood fired with pistol. Then he went to the shop of Abdul Rehman to inform his brother Fateh Muhammad (Complainant) and returned back. On reaching home, his brother has already expired.
18. In cross examination, he disclosed following three important aspects of the case:-- (i)The police recorded my statement next day in morning in my house. I had not stated in my statement before police that I rushed towards the room of my brother Nabi Bakhsh and saw accused Rehmatullah, and Ismail cought hold of Nabi Bakhsh and Mehmood fired on him.
19. (ii)I do not remember that I stated before police that I came out from room and saw Mehmood Khan, Rehmatullah and Muhammad Ismail, present in Courtyard of our house, and (iii)It is correct that at the time of incident, my brother Fateh Muhammad was present in the house and he had not seen any person committing the murder.
20. Mr. Riaz Ahmad, Advocate, contended that portions of his statement, noted at Serial Nos.(i) and (iii) have given fatal blow to the prosecution case, because on basis of these versions, statement of witness can be kept out of consideration, without further discussion.
21. There is no doubt that the portions of evidence in cross examination of witness noted at Serial Nos.
(i) and (iii) has caused dent in the prosecution case, but if both these sentences are read together, with the sentence mentioned at Serial No.(ii) it becomes abundantly clear that the defence itself admit the presence of all the three respondents inside the house of deceased Nabi Bakhsh, where they were seen by the witness, when they were present in the Courtyard. As for as mistaken identity of respondents, is concerned, that does not arise, because it is nobody's case that they were not identified by P.W. Niaz Muhammad. Assuming for sake of arguments that portion of evidence of the witness at Serial Nos.(i) and (iii) are correct, still it has been established that respondents entered inside the house of deceased Nabi Bakhsh, on the night of incident. To substantiate this aspect of the case, reference to the impugned judgment can be made to the extent, wherein it has been held that they were found guilty of lurking house tress-pass by night and this portion of the judgment has been conceded by respondents themselves, because they did not challenge their conviction on merits, even before this Court as well as by filing a petition for leave to appeal before Hon'ble Supreme Court. Therefore, said portion of the judgment being a relevant circumstance, can be used against respondents under Article 54 read with 57 of the Qanoon-e-Shahadat Order, 1984.
22. Thus, in presence of this important aspect of the case, portion of the evidence of P.W. Niaz Muhammad noted hereinabove at Serial Nos.(i) and (iii) looses its significance, if at all, it is presumed that the witness had not stated before police that he rushed towards the room of his brother Nabi Bakhsh and saw the accused Rehmatullah and Ismail, cought hold of Nabi Bakhsh and Mehmood fired on him, nor the next portion of his evidence, wherein he stated that at the time of incident, his brother Fateh Muhammad was present in the house and he has not seen any person committing the murder, could be considered to brush aside his evidence, as a whole.
23. It may further be seen that admittedly the dead body of Nabi Bakhsh was found lying inside the house as per sketch (Exh.P/H). Similarly the recovery of blood stained earth suggest to believe that deceased was killed inside the house. It is not understandable that how respondents have been exonerated of the charge of murder by trial Court, because in view of above discussion and the order operating against them, to the extent of conviction/sentence under section 456/34, P.P.C., it has been established that respondents entered inside the house of deceased during night time.
24. P.W. Dr. Abdul Ghaffar Medical Officer, in the medical Certificate (Exh.P/B) had confirmed following two wounds of fire arm on the dead body of deceased:-- "(1) Fire-arm entrance wound 1/2" in diameter margin burnt would lies in the 5th intercostal space anterior midcal eviculer line (RT side).
25. (2)Exit wound about 1" in diameter between 8th and 9th intercostal space on back (RT side).
26. (3)Entrance wound left maxillary bone of left side.
27. (4)Exit wound lies on occipital region diameter is about 1"."
28. Presence of two wounds of bullet on his dead body gets corroboration from the recovery of two empties by Police at the time of incident vide memo. Exh.P/E, produced by P.W. Allah Dinna. It may be re-called that P.W. Niaz Muhammad has also stated in his examination-in-chief that respondent Mehmood fired 2/3 shots upon the deceased. It is important to note that during investigation crime weapon i,e, pistol was also recovered from possession of respondent Mehmood, vide memo. Exh.P/F, produced by P.W. Abdul Rehman, Police Constable. the witness deposed that accused disclosed to Abdul Karim, S.H.O. that he is ready to lead the police for recovery of weapon of crime. Thereafter, accused took the police party consisting of S.H.O., the witness himself and other police staff to his house, situated in Charmori, Sibi. The accused went inside the room and took out a .30 bore pistol from beneath the beddings. On unloading the pistol the Magazine found contained four live rounds. S.H.O. took into possession the pistol and prepared the recovery memo. In cross-examination, statement of this witness could not be shakened. The pistol alongwith empties was sent to the Fire Arm Expert as per the statement of Abdul Karim D.S.P., who at that time was posted as S.H.O., Saddar Police Station, Sibi. According to his version, the Moharar of Police Station sent the blood-stained earth, clothes of deceased and empties to the Chemical Expert. He further stated that he was called by S.P. Crimes and he told him that the above pistol is missing, therefore, due to this reason, the pistol could not be produced alongwith the Expert's report. As such, it would be useless to further discuss this piece of evidence.
29. Learned trial Judge discarded the evidence of P.W. Niaz Muhammad in view of the fact that his statement was recorded with delay, for which, no explanation has been offered. Therefore, in view of the judgment of Hon'ble Supreme Court reported in 1993 SCM R 550, he has not been considered a' trust worthy witness. In our opinion the principle laid down in the judgment, with utmost respect, is not attracted in view of the facts of instant case, because P.W. Niaz Muhammad when entered in witness box, he gave explanation that on next day his statement was recorded but Abdul Karim stated that he recorded his evidence on 3rd October, 1994 i,e, the night when incident took place.
30. Learned trail Court has fallen in error in holding that there should have been explanation of recording the statement with delay. We may observe that when there is no delay at all as per the statement of Abdul Karim, who was investigating the case, then where was the occasion for the witness to give explanation. As for as the version of P.W. Niaz Muhammad to the effect that he recorded his statement on next day is concerned, that also appears to be true, because incident took place during night and F.I.R. (Exh.P/A) was lodged by P.W. Fateh Muhammad at 2.15 a.m. therefore, his statement could have only been recorded in morning time. Thus, the reasons advanced in this behalf by trial Court to discard the evidence of P.W. Niaz Muhammad is contrary to the principle laid down by Hon'ble Supreme Court in PLD 1985 SC 11, as in this behalf it has been held that when any important piece of evidence has been ignored, the appellate Court ceased with the acquittal appeal, can interfere in the order. Thus, we are inclined to hold that the impugned judgment to the extent of acquitting the accused from the charge of murder is based on ignoring important evidence of Niaz Muhammad, which is supported by other evidence, as it has been discussed hereinabove. In our opinion, this statement itself is sufficient to hold the respondents guilty for the crime of murder of Nabi Bakhsh, because he was a boy of tender age, therefore, he had no rhyme or reasons to falsely involve the respondents in commission of offence.
31. Additionally, his brother has been murdered, therefore, he would not allow the real culprits to go scot-free and will involve respondents without any justification. He being the natural witness has furnished coherent and confidence inspiring evidence, which does not suffer from any important legal error, rendering his statement, in-admissible.
32. Now the next important question is relating to the quantum of punishment. Since in F.I.R. motive was set-up but except the statement of P.W. Fateh Muhammad, no other evidence has come on record to corroborate that deceased Nabi Bakhsh had committed theft in the house of respondent Ismail, in which, he was arrested and sent-up to face trial but he was acquitted of the charge, as such, due to this grudge, Ismail has killed him. In this behalf, prosecution could have brought on record the facts of earlier theft case and judgment of acquittal, recorded by Sessions Judge, Sibi.
33. Therefore, in absence of convincing evidence, it is not possible to believe the motive. At this juncture, question crops up with regard to liability of each of the accused in commission of offence.
34. To attend this aspect of the case, reference can be made to the statement of P.W. Niaz Muhammad, according to whom, Rehmatullah and Ismail cought hold of deceased whereas Mehmood fired 2/3 shots upon him, which would mean that crime was committed by all of them with common intention, therefore, they would be equally liable for the act of murder, which they have done in furtherance of common intention, because overt act of both the respondents Rehmatullah and Ismail facilitated the commission of crime for the accused Mehmood. Therefore, in view of the judgment reported in PLD 1991 SC 923, we are inclined to hold that accused Mehmood, inflicted fatal blows on the person of deceased whereas accused Rehmatullah and Ismail facilitated the commission of offence, as such, each of them shall be liable for the act of murder.
35. Thus, for the foregoing reasons, appeal is allowed. Impugned order is set aside and respondents- accused are convicted under section 302(b)/34, P.P.C. and each of them is sentenced to suffer imprisonment for life, with benefit of the period, during which they remained as under-trial Prisoner, as provided under section 382-B, Cr.P.C.
36. Warrants of arrest of accused-respondents, Rehmatullah, Ismail and Mehmood be sent to S.P. Sibi, alongwith the copy of this judgment, for execution and compliance report.
37. A copy of the judgment be also sent to D.I.-G. Crimes, for conducting enquiry to ascertain that under what circumstances the crime weapon i,e, pistol was misplaced from the custody of Fire Arm Expert and what action was taken by police department against the officer, who is responsible for such act and if action has not been taken against him, the reasons of same should be assigned in the report, to be submitted by him within four weeks, after receipt hereof. On receipt of report, it will be placed in chamber for perusal and further action, if need be.