' AMAN ULLAH KHAN, J.--- By this common judgment, we propose to dispose of Criminal Acquittal Appeal No,320 of 1998 filed by appellant Haji Bismillah and Criminal Acquittal Appeal No,340 of 1998 filed by the State through Advocate-General, as both the appeals are directed against the common judgment, dated 19-10-1998 passed by Sessions Judge, Pishin whereby respondent No,1 Abdul Ali has been acquitted under section 302/324, P.P.C.
2. The facts in the background are that complainant Haji Bismillah lodged report with Chaman Police Station under section 302/324/147/148/ 149/365/511, P.P.C. Read with section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, on 7-5-1994 at about 8-00 a.m. It was alleged in the F.I.R. That he (complainant) left his house at 7-30 a.m. In his Land Cruiser bearing registration No,173-165 Karachi alongwith his four brothers namely Dawud Shah, Muhammad Raza, Ahmad Shah and Ubaidullah towards College Colony to see off Hajis. At about 8-00 a.m. When they reached Telephone Exchange, Abdul Ali, Muhammad Khan, Musa, Waris, Abdul Hakeem, Zahir, alongwith six other persons whose names were not known to him, however, he could recognize them on seeing, signalled them to stop. When they stopped the vehicle, Abdul Ali alongwith his companions tried to kidnap them by force and respondents Abdul Ali holding a Kalashinkov and his other companions armed with pistol started firing at them due to which Dawud Shah received injuries on his chest and he died on the spot. Muhammad Raza was injured; he succumbed to the injuries in the hospital and Ahmad Shah received injuries on his leg and accused persons while leaving the place after firing, took away the Land-cruiser of the complainant. The motive was that last year, deceased Dawud Shah had fought with Shah Muhammad, nephew of Abdul Ali and had injured him. To take revenge of the said incident, the accused persons attacked the complainant party on the day of incident.
3. The F.I.R. Was lodged by P.W.7 Syed Ikram Hussain Zaidi S.-I. Police Station Civil Line, Chaman.
Initial investigation was also conducted by him. From the perusal of the record, it reveals that the complainant party being dissatisfied with the investigation of the case, conducted by police authorities, made certain applications to the higher authorities for transferring the case to the Crimes Branch for proper investigation. Though the investigation of the case had been completed by Chaman Police authorities, but on the application of the appellant the matter was transferred to Crimes Branch authorities for further probe and investigation.
4. Soon after the occurrence, most of the accused persons including the appellant could not be arrested; only accused persons namely Abdul Zahir, Gul Baran and Haji Allah Dad were arrested.
Challan against the afore-stated three accused persons was submitted before Sessions Judge, Pishin who tried the said persons under section 302/324/365/511/147/148/149, P.P.C. After conclusion of trial, the accused persons namely Abdul Zahir and Gul Baran were convicted to suffer R.I. For fourteen years and Allah Dad was acquitted of the charge vide judgment, dated 22-6-1996; being aggrieved from the said judgment, the complainant Haji Bismillah filed Criminal Revision for enhancement of sentence of Abdul Zahir and Gul Baran being Criminal Revision No,38 of 1996 and an appeal against acquittal of Allah Dad being Criminal Acquittal Appeal No,161 of 1996. The convicts Abdul Zahir and Gul Baran also filed an appeal against their conviction being Criminal Appeal No,131 of 1996. All the aforestated Criminal Revision, criminal Acquittal Appeal and Criminal Appeal were disposed of by this Court upholding the judgment of the trial Court vide judgment, dated 24-4-1997. Being dissatisfied with the said judgment passed by this Court, the complainant and the convicts filed Criminal Petitions for leave to appeal before the Honourable Supreme Court.
The Honourable Supreme Court was pleased to grant leave to appeal in the appeals filed by the complainant Haji Bismillah and appeal filed against conviction filed by Abdul Zahir and Gul Baran vide judgment, dated 19th November, 1997; however, the said appeal is pending before the Honourable Supreme Court.
5. It may be mentioned here that when leave to appeal was granted to the complainant and the convicts by the Honourable Supreme Court, the original record of the Trial Court was also.
Summoned. In the meanwhile, during the pendency of the appeal before the Honourable Supreme Court, respondent No,1 Abdul Ali was arrested from Killa Saifullah, challan of the case was submitted on 19-12-1997 before the Sessions Judge, Pishin. Charge against the appellant was framed on 25-7-1998 which was refuted by him. To substantiate the allegations alleged against the accused, the prosecution produced the following witnesses:
6. P.W.1 Haji Bismillah is the complainant. He stated that on 7-5-1994 at 7-30 a.m. He alongwith hiS brothers Dawud Shah, Haji Muhammad Raza, Haji Ahmad Shah and Ubaidullah left their house in Land-cruiser bearing Registration No,173-125 Karachi, for College Colony. When they reached Telephone Exchange, 13 persons including respondent Abdul Ali, Muhammad Dawud, Musa, Abdul Hakeem, Waris, Zahir, Allah Dad, Shankai, Hanifia, Gul Baran and Ghaffar signalled them to stop.
Abdul Ali had a Kalashinkove, the others were armed with Dandas and pistols. On stopping the vehicle, Haji Abdul Ali gave a Lalkara to put them into the vehicle. On their resistance Abdul Ali fired at DadShah, who died on the spot. Shah Muhammad fired at Haji Muhammad Raza who succumbed to the injuries in the hospital. Ghaffar fired at Ahmad Shah on his leg and the others attacked them with stones and sticks. He further stated that convict Gul Baran pulled him and Allah Dad beat him with the butt of Kalashinkov and Zahir fired at him with pistol which did not hit him. - The motive of the said incident was that one year back they (complainant party) had beaten Shah Muhammad who was nephew of Abdul Ali and to take revenge, Abdul Ali alongwith other persons attacked them. He lodged F.I.R. Exh.P/1-A. In cross-examination, he stated that they reached the place of occurrence at 8-00 a.m. And it took about 15 minutes in the whole incident; they were taken to hospital in a Pick-up by the people who had gathered there. Re stated that he had also received injuries on his left shoulder and from hospital he went to the police Station. He had not gone to the place of occurrence from the Police Station. Salahuddin Baloch and Dad Khan accompanied him to the Police Station and from the Police Station he went to their killi (village) and the dead-bodies were also shifted to Killi at about 11-00 a.m. Where they were buried. He denied that Ubaidullah did not receive any injury and they remained in the house for three days for holding Fatiha of the deceased. Ahmad Shah was shifted to Quetta and remained admitted in the hospital for 13/14 days. Many people gathered at the place of incident from whom he knew Amir Hamza, Noor Ahmad and Kullah Khan. He admitted that the place of incident is situated near Taxi Stand and Cattle Market and there were many Rehri Walas at the place of incident. He further stated that S.H.O. Zaidi came to the place of incident after about 10 minutes of the incident and the police did not record his statement at the place of incident. He denied that F.I.R. Was lodged after consultation. He further denied that respondent Abdul Ali was not present at the scene of occurrence and further denied that the vehicle was not taken by him. He further stated that Abdul Ali fired at Dawud Shah from a distance of four feet and Shah Muhammad fired at deceased Muhammad Raza from a distance of one feet. He stated that he was also medically examined on the said date. He denied that he did not receive any injury and further confronted with the statement that Abdul Ali had not asked his other companions to put them and kidnap them. When confronted, it was not mentioned so in the police statement. He denied that Abdul Ali was not present at the place of incident and further denied that Abdul Ali has been nominated as he is elder of the family.
7. P.W.2 Ahmad Shah narrated the same story as deposed by P.W.1 Haji Bismillah. He stated that on 7-5-1994 at 7-30 a.m. He alongwith his brothers Bismillah, Muhammad Raza, Dawud Shah and Ubaidullah in their Land cruiser bearing Registration No,173-125 Karachi, left their house for College Colony to see off the Hajis going for Hajj. When they reached Telephone Exchange, respondent Abdul Ali alongwith 12/13 persons were present there and stopped them. As they stopped the vehicle, the accused persons said that they would put them in the vehicle and abduct them. On their resistance, Abdul Ali fired at Dawud Shah on his chest who died on the spot. Shah Muhammad fired with a pistol on Haji Muhammad Raza who was injured and was shifted to the hospital but he died in the hospital. Abdul Ghaffar and Haji Abdul Ali caught hold of him from his collar and Abdul Ali asked Abdul Ghaffar to kill him. Abdul Ghaffar fired at him with a pistol. He further stated that the other accused persons were Muhammad Khan, Musa, Shah Muhammad, Abdul Hakeem, Waris, convicts Zahir, Gul Baran, Hanifia, Allah Dad and Shankai. After the occurrence, the accused persons left the place of occurrence and took their Land-cruiser alongwith them. He further stated that he was shifted in a vehicle to the hospital and from Chaman he was shifted to Quetta. In cross-examination he stated that they reached the place of occurrence at about 8-00 a.m. And the occurrence took place only for 10 to 15 minutes. He was shifted to hospital in the vehicle of Baloch Khan. Many people gathered there. He reached the hospital at 8-15 a.m. And thereafter, he was shifted to Quetta on the same day at about 9-00 a.m. When he was in Civil Hospital, Chaman, the Police reached there but did not record his statement. Thereafter, in Quetta he remained admitted in hospital for about 20 days. The Police recorded his statement after he was discharged from the hospital. The police did not come to Quetta for recording his statement. He further stated that his statement was recorded by Crimes Branch Police authorities on 1-9-1994. He, however, denied that the appellant has been falsely implicated in the case. He stated that he was shifted to Quetta by Abdul Manan, Amir Hamza, Akhtar Jan and Ramzan and Salahuddin. He stated that the afore-stated persons are his relatives; he stated that these persons were also present at the time of alleged incident. He stated that he had told the police while recording his statement that the aforementioned persons were present at the time of incident. However, it was not so recorded. He further stated that no conversation took place between them and the accused persons at the time of incident, however, it was not so recorded. It was also not mentioned in the police statement that Abdul Ali said to put them in the vehicle. He stated that he had stated before the police that Abdul Ali fired with Kalashinkov at Dawud Shah who died at the spot whereas in the statement it was stated that Abdul Ali fired with Kalashinkov and others with pistol. He further stated that he said in his statement recorded by the police that Abdul Ali caught hold of his collar and told Abdul Ghaffar to fire upon him; it was not so recorded in his police statement. He further stated that Abdul Ghaffar fired six shots at him placing the pistol at his leg. He denied that Abdul Ali had been falsely implicated in the instance case.
8. P.W. 3 Akhtar Jan stated that on 7-5-1994 at 8-00 a.m., he went to see off the Hajis. At that time Haji Bismillah, Haji Muhammad Raza, Ahmad Shah, Dawud Shah and Ubaidullah came in a Land- cruiser there and were signalled to stop by Abdul Ali, Muhammad Khan, Musa, Allah Dad, Shankai, Shah Muhammad, Gul Baran Ghaffar, Abdul Hameem, Abdul Waris and Hanifia. Abdul Ali gave a Lalkara to abduct them but the complainant party resisted and after failing to abduct them, Abdul Ali fired at Dawud Shah who died at the spot. Shah. Muhammad fired at Muhammad Raza who died at the hospital. Ghaffar fired at Ahmad Shah and injured him. Thereafter, accused persons left their vehicle and took away the vehicle of the complainant party. In cross-examination he stated that he knew the accused and complainant party before the incident. He admitted that he belonged to the same tribe as that of complainant party. He admitted that his grand-father and the father of Haji Bismillah were brothers. However, he denied that he is related to complainant Haji Bismillah. He stated that his statement was recorded by Chaman Police; however, he did not remember the date. He himself went to the Police Station. During cross-examination some improvements made in his police statement were pointed out such as that he did not state in his police statement that at 8-00 a.m. The complainant party came to the place of incident near Telephone Exchange. He did not mention the names of the complainant party in his police statement. He had also not mentioned that Abdul Ali gave Lalkara to abduct the complainant party. He had also not mentioned that Abdul Ali fired at Dawud Shah and Shah Muhammad fired at Haji Muhammad Raza. He had also not stated that the accused party took away the vehicle of the complainant party. He admitted that his statement was recorded by Crimes Branch Police Authorities after one month of the incident. He denied that his statement was recorded after four months of the incident by the Crimes Branch. He further stated that he had not stated to the Crimes Branch that his statement is the same which was recorded on 15-4-1994, by Chaman Police Authorities. He admitted that at the time of alleged incident, there were many persons at the place of incident. He stated that he did not go to the police on the same day. He further stated that he did not state before Chaman Police Authorities that on coming to the hospital, he came to know that Haji Muhammad Raza and Dawud Shah had been killed in the said incident. He, however, denied that he gave a wrong statement as he was related to the accused persons.
9. P.W. 4 Ubaidullah stated that on 7-5-1994, he alongwith his brothers Bismillah, Haji Muhammad Raza, Ahmad Shah and Dawud Shah went towards College Colony in their Land-cruiser to see off the Hajis at about 8-00 a.m. At the Telephone Exchange, Abdul Ali who was present there alongwith 12/13 persons signalled them to stop and when the vehicle was stopped, Abdul Ali gave a Lalkara to abduct them which was resisted by them. Thereupon, Abdul Ali fired with Kalashinkov at Dawud Shah who died on the spot. Raza Muhammad fired with pistol at Haji Muhammad Raza who later on died in the hospital. Ghaffar fired six bullets at Ahmad Shah who was injured and shifted to Civil Hospital Chaman and from there to Civil Hospital, Quetta. The other accused persons had beaten Haji Bismillah with sticks and stones and injured all of them. The other accused persons were Allah Dad, Shankai, Musa Muhammad Khan, Abdul Waris, Abdul Hakeem, Zahir, Gul Baran, and Hanifia.
After the incident the accused party attacked their vehicle. In cross-examination he stated that his statement was recorded only by Crimes Branch Police after about four months of the incident. He had gone to the hospital on the same day at about 8-20 a.m. Haji Muhammad Raza was examined first; thereafter, Dawud Shah was examined by the doctor on the same day. He did not remember the time of his check-up whether it was in the morning, evening or night. He remained admitted in the hospital for seven days. He denied that he was never admitted in the hospital. He admitted that many people gathered at the place of incident. He said that some people took him to the hospital whom he could not identify and at the time of incident no conversation took place between them and the accused party. During his cross-examination some improvements made in his statement were pointed out such as that in his police statement he had stated that exchange of hot words took place between them and the accused party and even in his previous statement recorded in the Court in the previous case, he had stated that hot words were exchanged between them and the accused persons after the Lalkara. He did not know P.W. Akhtar Jan. The Police did not reach the place of incident in his presence. He did not come to the place of incident with the police. When he reached the hospital he also saw Bismillah there. Bismillah left the hospital prior to him and had taken away the dead bodies to their house. He also accompanied the dead bodies. He came to the hospital after burial of the deceased persons. He denied that he was not present at the place of incident. He further denied that Abdul Ali had been implicated in the instant case as he was elder of the family.
10. P.W.5 Haji Abdul Zahir is a marginal witness to the recovery of things recovered from the place of incident. He stated that Salahuddin produced two magazines of Kalashinkov alongwith 36 bullets, waist-coat, photocopy of the Identity Card, one printed piece of cloth, one spoon, one hair brush, one audio-cassette, to the S.H.O. The same were taken in his presence.. He admitted that the complainant Bismillah was his relative. Salahuddin had taken him to the Police Station. He went alone to the Police Station and saw Salahuddin and Bismillah there. He denied that he was taken to the Police Station by Salahuddin and Bismillah. His statement was recorded by S.H.O. Chaman. He did not remember the day of recording his statement. He did not put any identification mark on the aforementioned articles. He denied that he gave both the statement due to his relationship with the complainant.
11. P.W.6 Amir Muhammad stated that on 7-5-1994, after receiving information of the incident he alongwith S.H.O., went to the hospital at about 9-00 a.m. The S.H.O. Took into possession clothes of Muhammad Raza and thereafter, went to the place of incident and recovered empty shells i,e,, one empty of .32 bore pistol, 2 empties of Kalashinkov and two empties of .30 bore, live bullet and a vehicle was also taken into possession from the place of incident. The parcel of the empties was prepared and secured by him. S.H.O. Crimes Branch Wali-ur-Rehman also took one Sadri (waistcoat) and Shalwar in his presence. In cross-examination he stated that he remained in the hospital for half an hour and thereafter, went to the place of incident and stayed there for about one hour. He stated that he did not remember whether any one from complainant party accompanied him to the place of incident and after visiting the place of occurrence, he went to arrest the accused persons. The S.H.O. Ikram Zaidi was also with him. He admitted that no private person was called to witness the recoveries.
12. P.W.7 Syed Ikram Hussain Zaidi stated that on 7-5-1994 he received information about the fight near Telephone Exchange. He went to the place of incident where he was informed that the injured had been shifted to the hospital. He went to the hospital with S.-I. Amir Muhammad, A.S.-I.
Zainuddin and other police officials. In the hospital he saw the dead body and two other injured persons. Bismillah, brother of the deceased who was also injured, was also present in the hospital.
He recorded Fard-e-Bayan of complainant Bismillah on the basis of which F.I.R. Was lodged, took into possession blood-stained shirt of Muhammad Raza, prepared injury report and then alongwith the complainant Haji Bismillah went to the place of incident. At his pointation, he prepared the site inspection and sketch of the place of incident and during said inspection he took into possession two empties of .30 bore, one empty of .32 bore, 2 empties of Kalashinkov and also took into possession one live bullet of .30 bore and a double seated Pick-up vehicle bearing registration No,QAG 2588, registration book of Land-cruiser bearing No,173-125, Karachi. He arrested accused Gul Baran and also took into possession his turban which was blood-stained and during investigation, he recorded statements of the prosecution witnesses. On 14-5-1994, Bismillah produced the sadri, two magazines of Kalashinkov, one containing 22 cartridges and the other containing 14 cartridges; one hair brush, one video cassette and one spoon were also taken into possession. He submitted incomplete challan against Gul Baran on 27-5-1994. In cross- examination he stated that he remained at hospital for about 30 minutes. He reached the hospital at about 8-15 a:m. He did not remember as to when he prepared the injury report of Ahmad Shah.
He did not prepare the injury report of Ubaidullah. He admitted that had Ubaidullah been injured, he would also have prepared his injury report. He did not record the statement of Ubaidullah. He did not remember as to whether he prepared the injury report of Bismillah. He admitted that Bismillah had not mentioned in the Fard-e-Bayan about his being injured. From the hospital, he went to the place of incident. He denied that Fard-e-Bayan was not recorded in the hospital. From the place of incident he went in search of the accused and returned to the Police Station at 6-30 p.m. While preparing sketch he did not obtain the signature of complainant Bismillah. No private witness was called to witness the recovery. He admitted that there is a taxi stand and cattle market near the place of incident. He admitted that many people gathered at the place of incident.
Bismillah did not inform him about the persons who witnessed the incident. He did not record the statement of other witnesses on the day of incident except that of Wali Muhammad and Akhtar Jan. He admitted that he did not record the statement of Ubaidullah during investigation of the case. He admitted that the complainant named only five persons and did not name all the other persons while recording his Fard-eBayan. He admitted that the complainant in Fard-e-Bayan had not mentioned about the abduction of the complainant party. It was also not mentioned in the Fard-e-Bayan that Zahir Shah fired at the complainant which missed him. He admitted that the prosecution witnesses had been produced before him by the complainant Bismillah. Dead bodies were buried without conducting their post-mortem. He denied that he conducted the investigation of the case partially.
13. P.W.8 Tajammul Shah, Inspector Police, stated that on 10-7-1997, while he was posted as Inspector in Crimes Branch, he was deputed to arrest Abdul Ali. He alongwith D.S.P. Azam and other police persons went to Killa Saifullah and arrested Abdul Ali on the said day. After arresting him, a pistol alongwith two magazines and 10 live cartridges were recovered from his possession. A separate case under Arms Ordinance was registered against him. He handed over investigation of the case to Pir Muhammad S.-I.
14. P.W.9 Pir Muhammad stated that in 1997 he was posted in Crimes Branch Police Station. On 10-7- 1997, he accompanied I.P. Tajammul Shah to Killa Saifullah where the appellant was arrested and investigation of the case was handed over to him on 15-7-1999. After completing investigation, he sent Abdul Ali to judicial lock-up and submitted challan Exh.P/9-A.
15. P.W.10 Zainuddin stated that on 7-5-1994 Ikram Hussain Zaidi went to Civil Hospital where S.H.O.
Took into possession the blood-stained shirt of deceased Muhammad Raza and prepared recovery memo and from the hospital went to the place of incident where the S.H.O. Took into possession of five empty shells of different bores and the Pick-up was also taken into possession.
The S.H.O. Also took into possession the turban of Gul Baran which was blood-stained and registration book of the land-cruiser produced by Haji Bismillah was also taken into possession. In cross-examination he stated that he did not remember at what time he went to the Police Station.
He did not remember the time when he reached the place of incident. He returned to the Police Station at about 8-00 p.m. He denied that the recovery was not taken into possession and further denied that he had deposed falsely.
16. Respondent Abdul Ali was examined under section 342, Cr.P.C., and also recorded his statement on oath under section 340(2), Cr.P.C. In his statement on oath he stated that on 3-5-1994, he had gone to Fateh Pur Dargah Gandawa. He was accompanied by Sardar Muhammad and there he fell sick and was admitted in Fateh Pur Hospital on 4-5-1994 and remained admitted there till 10-5- 1994 and after the incident he returned to his village at Chaman where he came to know about the said incident and then he went to Kabul in connection with his business and remained at Kabul for one year and due to disturbance he came back and he did not participate in the alleged incident and he has been falsely implicated as he is the elder of his family. In his defence he produced the following witnesses:---
17. D.W.1 Dr. Shabir Ahmad stated that on 5-4-1994 he was posted as Medical Officer in Gandawa.
On the said date, Abdul Ali was brought to the hospital and was admitted there and he was discharged on 10-4-1994. He produced photocopy of the certificate issued in this regard as Exh.P.1.
He further stated that he could not produce the relevant register as he was posted at Quetta. He denied that Abdul Ali was not brought to the said hospital on the said date for treatment. He did not remember the time of admission and discharge of Abdul Ali. He denied that the medical certificate produced was a forged document.
18. D.W.2 Sardar Muhammad stated that on 3-5-1994 respondent Abdul Ali was going to Ziarat, Gandawa. He also accompanied him and they remained at the place of Ziarat and on the next day, Abdul Ali became sick and was admitted in the hospital and thereafter, was discharged on 10- 5-1994. In cross-examination he denied that he had not accompanied the appellant. He, however, did not know the district and Division of Ziarat where they had gone. He did not remember the name of the doctor who admitted Abdul Ali. He denied that he had deposed falsely.
19. D.W.3 Hazar Khan stated that about six years back, he purchased a tractor from Abdul Ali. The amount was paid to him except Rs,50,000 which was outstanding against him. He went to Chaman to make payment of Rs,50,000 there. The son of Abdul Ali informed him that he had gone to Ziarat.
He made payment to his son on 6-5-1994 and left for Killa Saifullah on 7-5-1994. In cross- examination he stated that the tractor was purchased for a consideration of Rs,120,000; at the time of purchase Abdul Ali was residing at Chaman. Abdul Ali's son, to whom payment was made was Abdul Nafe. He denied that he did not purchase tractor nor had made payment in this regard. He further denied that he had deposed falsely.
20. D.W.4 Wali Dad stated on 3-5-1994, he went to the house of Abdul Ali who was ailing and informed him that he wanted to go to Ziarat of Fateh Pur. Abdul Ali alongwith Sardar Muhammad left for Fateh Pur and came back after 7/8 days. In cross-examination he denied that Abdul Ali was his uncle. He further denied that he had not gone to Abdul Ali on 3-5-1994 and denied that he had deposed falsely due to his relationship with Abdul Ali.
21. It may be pointed out that the statement of D.W. Wali Dad was recorded on 14-10-1998. The complainant filed an application on 3-10-1998 under section 540, Cr.P.C. For summoning Dr. Akhtar Muhammad and Zainuddin. The said application was allowed. Both the afore-stated witnesses were summoned. P.W.10 Zainuddin was examined on 9-10-1998 while P.W. Dr. Akhtar Muhammad appeared before the Trial Court on 8-10-1998. From the perusal of the record, it appears that the medical certificate issued by him was not available in the Court file as the original certificate was available in the previous case which had been summoned by the Honourable Supreme Court.
Therefore, due to non-availability of the medical certificate, Dr. Akhtar Muhammad was discharged and his statement could not be recorded.
22. After assessm ent of the evidence on record, the learned Sessions Judge, Pishin acquitted the appellant as mentioned above. Being aggrieved, complainant Haji Bismillah and State through Advocate-General have filed the above mentioned appeals.
23. Alongwith the appeal, an application under section 428, Cr.P.C., was also filed for summoning Dr. Akhtar Muhammad, Syed Zahid Hussain Shah compounder, Gandawa district Jhal Magsi and Abdul Jabbar chemical expert. Notice of the said application was given to the other side. The application for additional evidence to the extent of Dr. Akhtar Muhammad and Syed Zahid Hussain Shah Compounder was vehemently opposed by the respondents. However, during the course of arguments, Muhammad Latif Khan Khosa Advocate raised no objection to the report of the Chemical Examiner regarding opinion about the empties to be brought on record.
24. We heard the learned counsel on the application under section 428, Cr.P.C., and the application was allowed to that extent of Dr. Akhtar Muhammad vide detailed order, dated 18-8-1999.
Thereupon the said doctor was examined by this Court as P.W.11. He examined P.W. Ubaidullah on 7- 5-1994 and issued certificate Exh.P.11/A and found the following injuries on his person:-- "Trauma and swelling on the backside. Weapon blunt. Injury simple. Patient was discharged on the same day i,e, 7-5-1994."
25. He examined dead body of Dawud Shah and issued certificate Exh.P.11/B wherein the following observations were made:-- "The dead body brought by police on 7-5-1994 for post-mortem. He examined-- Entrance wound of gun shot on right side of anterior chest. Weapon gunshot. Cause of death excessive haemorrhage.
26. He also examined Haji Muhammad Shah and issued medical certificate Exh.P.11/C with the following observations:-- "The dead body brought by police on 7-5-1994 for post-mortem. On examination--- Entrance wound of gunshot on right side of anterior chest. Weapon gunshot. Cause of death excessive haemorrhage."
27. Complainant Haji Bismillah was also examined by him and medical certificate Exh.P.11/C was issued. The following injuries were noted:-- "Trauma and swelling on backside. Weapon blunt. Wound simple. After first aid the patient was discharged."
28. P.W. Ahmad Shah was also examined by him and medical certificate Exh.P.11/D was issued. The following injuries were noted on his person:-- "Gunshot wound of entrance and exit on left leg (through and through, entrance medieal side of left leg. Exit on lateral side of left leg). Gunshot wound of entrance on medial side of knee joint. Exit wound of gunshot on lateral side of knee joint. Weapon gun shot.
' Remarks Patient referred to S.P. Hospital, Quetta for treatment."
29. It may be mentioned here that while examining Dr. Akhtar Muhammad, respondent Abdul Ali was summoned and he was also examined under section 342, Cr.P.C. Wherein questions regarding medical certificates issued by Dr. Akhtar Muhammad were also put to him. Thereafter, we heard the learned counsel for the parties.
30. Mr. Azizullah Memon, Advocate assisted by Messrs Nasrullah Khan Achakzai and K.N. Kohli, Advocate, for the complainant contended that the learned trial Court has discarded the evidence of P.Ws. Whose presence was proved by the prosecution beyond any shadow of doubt and reasons for not taking into consideration the statements of the prosecution witnesses are not convincing and well-founded. The learned counsel further contended that from the evidence on record, the prosecution had fully proved its case against respondent Abdul Ali beyond any shadow of doubt; thus, the acquittal order which is based on misreading of ocular evidence is shocking, perverse and has caused serious prejudice to the complainant side.
31. Mr. Malik Sikendar, learned Advocate-General appearing on behalf of the State also adopted the arguments of Mr. Azizullah Memon, Advocate.
32. Mr. Sardar Muhammad Lateef Khan Khosa, Advocate assisted by Mr. Ehsan-ul-Haque Khan, Advocate for respondent Abdul Ali vehemently opposed the appeal and contended that the respondent has been acquitted by the competent Court of jurisdiction; thus, the principles for hearing an appeal against acquittal are different from those of an appeal against conviction. The learned counsel further contended that acquittal carries presumption of double innocence and normally the Courts would not interfere in an appeal against acquittal merely if on re-appraisal of evidence, a second view is possible unless the reasons given for acquittal are found to be artificial, shocking and ridiculous or any important piece of evidence has been misread which leads to no other conclusion but the guilt of the accused, as laid down by the superior Courts. The learned counsel on merits argued that the prosecution witnesses have been rightly discarded and disbelieved by the trial Court as they were interested witnesses, inimical towards the respondents and without independent corroboration, their testimony could not be relied upon.
33. The learned counsel further argued that there are material contradictions in the statements of the witnesses which have been rightly pointed out by the learned trial Court while acquitting the respondents. He further, stated that the statements of the witnesses had been recorded after a delay, thus, no reliance could be placed upon the same.
34. We have heard the learned counsel for the parties at length and with their assistance have perused the record of the case minutely.
35. It may be pointed out that the reasons which prevailed with the learned Sessions Judge for discarding the testimony of the eye-witnesses are that they are all interested witnesses and their testimony was not independently corroborated and at the trial all the witnesses made material improvements in their statements. Another reasons which prevailed upon the learned Sessions Judge for disbelieving the statements of the eye-witnesses was that nothing was brought on record to show that they had sustained injuries at the time of the incident. Besides, the statements of the prosecution witnesses were also recorded by the Investigation Officer after a considerable delay; thus, the same were also ruled out of consideration on the said ground and while appraising the evidence, the learned Sessions Judge has also pointed out improvements made by the eye- witnesses; the same shall be discussed at a later stage.
36. Reverting to the argument of Mr. Sardar Muhammad Lateef Khan Khosa, Advocate for the respondent that since the respondent has been acquitted by a Court of competent jurisdiction, thus, the principles of appreciation of evidence in an appeal against acquittal is slightly different from those of an appeal against conviction. The learned counsel argued that on re-appraisal of evidence this Court cannot interfere with acquittal if it comes to a conclusion different from that of the trial Court. There is no cavil to the proposition that principles regarding appreciation of evidence in an appeal against acquittal are slightly different from those in an appeal against conviction. As facts and circumstances of each case vary from one another; therefore, every case has to be decided on its own merits. However, the Honourable Supreme Court has laid down certain parameters while dealing with an appeal against acquittal. The said principles have been highlighted in the case of Ghulam Sikendar and another v. Memraiz Khan and others PLD 1985 SC 11 wherein, while dealing with an appeal against acquittal, following observations were made:-- "However, notwithstanding the diversity of facts and circumstances of each case, amongst others, some of the important and consistently followed principles can be clearly visualised from the cited and other cases-law on the question of setting aside an acquittal by this Court. They are as follows:--
(1) In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused.
This approach is slightly different than that in an appeal against conviction when leave is granted only for the re-appriasement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions: One initial, that till found guilty, the accused is innocent: and two that again after the trial a Court below confirmed the assumption of innocence.
(2) The acquittal will not carry the second presumption and will also thus loose the first one if on points having conclusive effect on the end result the Court below (a) disregarded material evidence (b) misread, such evidence; (c) received such evidence illegally.
(3) In either case the well-known principle of re-appraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principle must be necessitated by obligatory observances of some higher principle as noted above and for no other reason.
(4) The Court will not interfere with acquittal merely because on reappraisal of the evidence it comes to conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If, however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualised in these cases in this behalf was that the finding sought to be interfered with after scrutiny under the foregoing searching light should be found wholly as artificial, shocking and ridiculous."
37. Thus, on the touch-stone of the aforestated principles we proceed to evaluate the impugned judgment. As observed hereinabove, during the pendency of the appeal, the application under section 428, Cr.P.C. Was allowed vide our detailed order, dated 18-8-1999 and P.W.11 Dr. Akhtar Muhammad produced medical certificates Exh.P.11/A to Exh.P.11/D. After examination of P.W.11 Dr. Akhtar Muhammad who brought on record the aforestated medical certificates, no further room for doubt is left that the complainant party did not receive any injury or their presence at the place of incident could be doubted. It is pointed out that the learned Sessions Judge discarded the ocular testimony of P.W.1 Bismillah, P.W.2 Ahmad Shah, P.W.4 Ubaidullah inter alia on the ground that they were interested witnesses and had made various improvements in their statements. The learned Sessions Judge also discarded their evidence on the ground that no medical certificate was produced. The question whether the witnesses were interested and had made material improvements in their statements, shall be taken up at a later stage.
38. The medical certificates Exh.P.11/A to Exh.P.11/D further corroborate the testimony of the witnesses that they were very much present at the place of occurrence and had also received injuries. The doctor who was examined by this Court was also cross-examined at length. However, the doctor denied that the said medical certificates were forged. From the perusal of the medical certificates, it is held that the aforestated witnesses were very much present at the scene of occurrence and had received injuries as the medical certificates were issued on the same day and the injuries mentioned in the certificate tally with their statements and the occurrence as stated by them. Besides, it is worth-mentioning that the said medical certificates were also produced by the same doctor i,e, Akhtar Muhammad in the previous case against convict Gul Baran and others and while convicting accused Gul Baran and Abdul Zahir, the said certificates were believed. Though no reliance can be placed on the previous judgment wherein accused Gul Baran and Abdul Zahir have been convicted, but it can be inferred that the medical certificates which were relied upon in the previous judgment and the same have been independently proved before this Court in the instant case can be safely relied upon, in the instant case.
39. It may be mentioned here that allowing application under section 428, Cr.P.C. For additional evidence and bringing on record the aforestated medical certificate are not the sole basis of interference by this Court. Even if additional evidence had been rejected, still there are other grounds on the basis of which interference can be made in the impugned order, for the reasons discussed as follows.
40. Adverting to the argument of Mr. Azizullah Memon, Advocate that the learned Sessions Judge had wrongly discarded the testimony of the ocular witnesses on the ground that they were interested witnesses being related to the deceased persons, the learned counsel for the appellant argued that there is nothing on record to show that the complainant party had any motive to falsely implicate the respondent in the commission of offence. Mr. Sardar Muhammad Lateef Khan Khosa, Advocate vehemently opposed the arguments of Mr. Azizullah Memon, Advocate, and contended that since the ocular witnesses were brothers of the deceased persons and had enmity with the respondent, thus, their evidence cannot be relied upon without any independent corroboration. It may be observed here that the respondent has failed to prove on record that the ocular witnesses being brothers of the deceased had a motive to falsely implicate him in this case.
It may be observed here that though P.W.1, P.W.2 and P.W.4 were brothers of the deceased persons, but during the incident they also received injuries and Ahmad Shah received bullet injuries which fact has been further strengthened by medical certificate Exh.P.11/D, It is not the case of the defence that P.W. Ahmad Shah had not received injuries at the place of incident nor the medical certificate was denied in respect of Ahmad Shah. Thus, the presence of the eye-witness has been established at the place of occurrence. It may be pointed out that mere relationship of a witness does not make him an interested witness. It is difficult to believe that a person would let go free the actual murderers of his brother and nominate an innocent person as a culprit. Even an interested witness would not allow actual murderers to go free by involving an innocent person. In such circumstances we are persuaded to disagree with the findings of the learned Sessions Judge that the testimony of the aforestated ocular witnesses is discarded on the ground that they are interested witnesses. Besides, it has been alleged that the ocular witnesses have falsely implicated the respondent as he was the elder of the family but nothing was brought on record to suggest that the witnesses had a strong motive to implicate the said respondent in the commission of the offence. No animosity has been alleged to the ocular witnesses by the respondent nor anything was brought on record to infer that the ocular witnesses had any motive to falsely implicate the respondent in the commission of the offence. In this regard reference is made to the following cases:-- "(1) Muhammad Khan and others v. Zakir Hussain and others PLD 1995 SC 590 wherein the following observations were made-- 'Mere relationship does not make a witness interested one. But on account of enmity he can be treated as interested wintess. An interested witness may be truthful and reliable witness and conviction can be based on his evidence, but the Court has to take great care and caution and would seek for corroboration. It may be observed that the evidence of Muhammad Khan does not suffer from any inherent defect. It inspires confidence. Besides, there is sufficient ocular and circumstantial evidence available on the record to corroborate his evidence. His evidence cannot be totally discarded on that score alone. There existed enmity between the parties. Sher Muhammad indeed is independent witness. No animosity has been suggested against him. His solitary evidence is sufficient to maintain conviction of the assailant. Besides, he corroborates the statement of the complainant Muhammad Khan who is another eye-witness of the incident."
(2) Irshad Ahmad and others v. The State and others PLD 1996 SC 138 wherein it was held as under:- - "Undoubtedly, the substitution is a phenomenon of rare occurrence because even the interested witness would not normally allow the real murderers of their relation to escape by involving innocent persons. In these circumstances, the evidence of Mst. Basheeran ' Bibi cannot be discredited merely because she was the widow of the deceased and inimical towards the appellants."
41. Reverting to the next contention of Mr. Azizullah Memon, Advocate that the learned trial Court had misread the evidence as the prosecution had proved the case against the respondent beyond any shadow of doubt but the learned Sessions Judge discarded the testimony of the ocular witnesses on extraneous grounds; it may be mentioned here that the F.I.R. Was lodged promptly by complainant Bismillah. The incident took place at about 8-00 and the F.I.R. Was lodged at 8-15.
Sardar Muhammad Lateef Khan Khosa, learned counsel argued that the F.I.R. Was lodged after consultation due to which the respondent being the elder of the family was falsely implicated in the said case. The arguments of the learned counsel for the respondent do not appear to be convincing as the F.I.R. Was lodged soon after the occurrence which negates the possibility of false implication of the assailants. The F.I.R. Contains the names of the witnesses and the assailants and the weapons carried out by each of the assailants have been mentioned. P.W.1 complainant Bismillah in his statement before the Court gave a detailed account of the incident. He stated that when they were signalled to stop near College Colony, Abdul Ali who was holding klashnikov gave a Lalkara to abduct them. On his resistance Abdul Ali fired at Dawud Shah who died on the spot. The statement of the complainant to this extent has not been shaken in cross-examination; though in the F.I.R. He did not state that Abdul Ali fired at Dawud Shah whereas in the F.I.R. It is stated that Abdul Ali who was armed with klashnikov and the other accused persons armed with pistols started firing at them due to which Dawud Shah received injuries and died on the spot while Raza Muhammad died in the hospital. Mr. Sardar Muhammad Lateef Khan Khosa, Advocate argued that since in the F.I.R. P.W.1 had not stated that Abdul Ali fired with klashnikov at Dawud Shah; however, it may be observed that it is not necessary to give minute details of the occurrence. The complainant in the F.I.R. Had clearly stated that Abdul Ali was armed with klashnikov and tried to abduct them by force and on their resistance, Abdul Ali and his other companions started firing. In his statement before the Court, death of deceased Dawud Shah has been attributed to Abdul Ali, is not such an improvement as would be fatal to the prosecution case. Though certain improvements and omissions were made by the complainant in his statement before the Court such as the witnesses did not know as to who reached the hospital first, whether the police reached the place of occurrence, whether any person was examined by the police in his presence, who took the deceased persons to the hospital etc. Such omissions would not discredit the testimony of these witnesses. The testimony of complainant Bismillah was further, corroborated by the recovery of empties coupled with the report of the Ballistic Expert that the said recovery is of klashnikov further corroborates the statement of P.W.1. Though the other witnesses have also corroborated the statements of P.W.1 but it may be mentioned here that conviction can also be recorded on the testimony of the sole eye-witness if that is confidence inspiring and satisfies the conscience of the Court.
42. Reverting to the statement of P.W.2 Ahmad Shah who received bullet injuries and was injured by the absconding accused Abdul Ghaffar, the injuries received by Ahmad Shah have also been further corroborated by the medical certificate Exh.P.11/E. Thus, his presence at the place of occurrence is proved. In his statement he stated that when they reached near Telephone Exchange, respondent Abdul Ali alongwith the 12/13 persons present there stopped them and tried to abduct them. On resistance, when they failed, Abdul Ali fired at Zahir Shah at his chest who died instantly. Shah Muhammad fired with pistol at Haji Muhammad Raza who was injured and died in the hospital and Abdul Ghaffar fired at him. The statement of Ahmad Shah to this extent very much corroborates the statement of complainant Bismillah. Though in his cross-examination he stated that his statement was recorded after considerable delay, he was shifted by Amir Hamza, Abdul Manan, Akhtar Jan, Haji Slahuddin and Sharung to the hospital. In cross-examination he stated that he had mentioned in his statement before the police that he was shifted by the aforestated persons but it was not recorded so but the learned Sessions Judge has disbelieved the statement on the ground that it was recorded after a considerable delay and he had made improvement about shifting in the hospital. His statement has materially corroborated the statement of P.W.1.
43. Reverting to the statement of P.W.4 Ubaidullah who stated that he also received injuries and he was examined by the doctor and medical certificate Exh.P.11/A was issued; he corroborated the statement of P.W.1 Bismillah and P.W.2 Ahmad Shah to the extent that when they reached the Telephone Exchange, Abdul Ali and other persons signalled them to stop and when Abdul Ali tried to kidnap them, on their resistance he fired at Dawud Shah who died on the spot. Shah Muhammad fired at Haji Muhammad Raza who died in the hospital and Abdul Ghaffar fired at P.W. Ahmad Shah on his leg. He was also cross-examined on the same day. His presence at the place of occurrence has also been proved. The learned Sessions Judge has discarded their statements on the ground that they have made material contradictions in their statements and their statements were recorded after a considerable delay by the police, which factor would be discussed later, and further they cannot be believed as they are interested witnesses. As observed hereinabove, defence has failed to bring on record as to why they would falsely implicate respondent Abdul Ali but it may be observed that even an interested witness would not let go the actual murderer to implicate an innocent person. All the eye-witnesses have corroborated each other on material points. Their presence has been 'illy established. It may be pointed out that defence has not disputed the presence of the aforestated witnesses at the place of occurrence inasmuch as the incident was not denied by the respondent. Throughout the plea of the defence has been that Abdul Ali was not present at the place of incident and he has been falsely roped in as he is elder of the family. It may further be pointed out that the testimony of the aforestated eye-witnesses cannot be discarded merely because there were minor discrepancies in their statements. It may be mentioned here that the incident took place in 1994 and their statements were recorded after about four years. Minor contradictions in their statements are but natural. The contention of Mr. Sardar Muhammad Lateef Khan Khosa, Advocate is repelled that the aforestated witnesses being related to the deceased persons and being interested cannot be relied upon. After close scrutiny of the statements of the aforementioned eye-witnesses we are convinced that their presence has been proved beyond any shadow of doubt and have I corroborated each other on material points and their testimony cannot be discarded only because they were interested witnesses. In this regard reference may be made to the following cases:--
(1) Zar Bahadar v. The State 1978 SCM R 136 wherein the following observations were made:-- "Both the eye-witnesses admitted that they were relations of the deceased and as submitted by learned counsel, they were very close relations of the deceased. But this would only mean that their evidence had to be scrutinized carefully. It would be no ground whatever for rejecting it because interested witnesses would not normally allow the real murderer of their relations to escape by implicating an innocent person."
(2) Nallamsetty Yanadaiah v. The State of Andhra Pradesh 1994 SCM R 588 wherein the following observations were made:-- "Learned counsel also submits that the eye-witnesses were all interested witnesses and they tried to implicate many innocent persons and that it would be highly unsafe to accept their evidence.
We see no substance in his submission. Here is a case where a large number of persons armed with deadly weapons like guns and other cutting weapons, participated in the occurrence during which four persons were killed and many of the witnesses who were present were also injured. It may be that they are all interested witnesses. But on that ground alone their evidence cannot be rejected. Their evidence is to be subjected to close scrutiny. As a matter of fact, the learned Sessions Judge as well as the High Court has considered evidence of each of the witnessed with great care and caution."
(3) Muhammad Ahmad v. The State 1997 SCM R 89 wherein it was held as under:-- "As regards the argument of the learned counsel for the appellant that Muhammad Iqbal P.W.
Being an interested witness, it was not safe to rely upon his evidence without independent corroboration, suffice it to be observed that the rule requiring independent corroboration of testimony of interested witnesses is a rule of prudence which is not to be applied rigidly in each case. There can be cases like the present one where implicit reliance can be placed on the uncorroborated testimony of an interested witness if it otherwise inspires confidence. Refer Abd- ur-Rasheed v. Umid Ali and others PLD 1975 SC 227 where while dealing with the question of credibility of interested witnesses, this Court has observed, 'It may be mentioned in this context that although as a rule of prudence, the Courts have more often than not insisted on independent corroboration before placing reliance on the testimony of interested witnesses yet it is not an inflexible rule to be rigidly and unexceptionally applied, there might be cases in which the witnesses related to the deceased might be otherwise quite natural furnishing direct evidence of a convincing nature unless there are reasons to believe that they have an animus against the accused and are giving a rather distorted or exaggerated account which does not inspire confidence, even their corroborated testimony may be implicitly relied upon, of course, in the context of other relevant circumstances of each case' ."
44. The learned Sessions Judge has also discarded the statements of the eye-witnesses on the ground that their statements were recorded after a J considerable delay. Mr. Muhammad Lateef Khan Khosa, Advocate also laid much emphasis on this aspect of the case. The learned counsel argued that since the statements of the witnesses have been recorded after a considerable delay; therefore, no reliance can be placed on the same. It may be pointed out that we have already believed the presence of the eye-witnesses at the place of incident. In the preceding paras. It was pointed out that during investigation of the case by Chaman Police, the complainant party succeeded in getting the case transferred to the Crimes Branch for proper investigation. From the perusal of the record it reveals that Chaman Police did not investigate the case properly. Therefore, delay in recording the statements of the witnesses was also caused due to the improper investigation in the case. K P.W.2 Ahmad Shah stated that after receiving injuries he was referred to Quetta for treatment. During this period Investigating Officer who was investigating the case at Chaman made no efforts to get his statement recorded. As two people had lost their lives during the incident and it was upon the police authorities to have called the persons and should have recorded their statements but from the perusal of the record it appears that no such efforts were made. Even otherwise once presence of the prosecution witnessses at the place of occurrence is established, then it would not matter if their statements were recorded after some delay. In the case in hand, if the investigation of the case was not transferred to Crimes Branch, the statement of P.W. Ahmad Shah might never have been recorded. Further the witnesses have also given reasons for delay in the recording of their statements. It may be observed here that common people are not aware of the intricacies of law, in such case, it was the duty of the Investigation Officer to have called upon the eye-witnesses and have recorded their statements in time, as it was in his knowledge that during the incident P.W.2 Ahmad Shah and P.W.4 Ubaidullah had also received injuries and their presence had also been shown in the F.I.R. Which had been lodged promptly after the incident. Be that as it may, as observed hereinabove, once the statements of the eye-witnesses are established, their testimony cannot be ruled out of consideration only because their statements were recorded after some delay by the police authorities, particularly when no efforts were made by the Investigation Officer to record the statements under section 161, Cr.P.C. In this regard reliance is placed on the following cases:--
(1) Kifayatullah and another v. The State PLD 1975 Pesh. 131 wherein the following observations were made:-- "In these circumstances, the failure of the Investigating Officer to record the statements of the witnesses under section 161, Cr.P.C. On the same day i,e, on 5-12-1972 should not lead to an inference that probably none had witnessed the occurrence and that the matter was constructed afterwards."
(2) Alam Sher and 5 others v. The State 1975 PCr.LJ 1188 wherein it was held as under:-- "It appears to us that before going to the civil hospital, Dunyapur, Lal Khan P.W. Did go to Police Station Dunyapur which is nearby, but the police did not want to record his statement before actually going to the spot and making some preliminary enquiries and also getting him medically examined in accordance with the usual practice. Lal Khan P.W. Was, therefore, asked to first go to the hospital and get himself treated. In the meanwhile at about 12-15 p.m., Piran Baldish P.W.11 appears to have come and lodged an F.I.R. At Police Station Dunyapur and apparently Lal Khan P.W.
Had by that time left Civil Hospital, Dunyapur for Nishtar Hospital, Multan, the police could not, therefore, record his statement under section 161, Cr.P.C. Until his return from his village in District Sargodha.
' From the above discussion, we see that the testimony of Lal Khan P.W. Who was himself injured in the incident and whose presence cannot, therefore, be denied, should not be disbelieved merely because his statement was recorded by the Investigation Officer after about 1-3/4 months."
(3) Hamid Javed alias Hamidi v. The State 1988 SCM R 39 wherein the following observations were made:-- "Ordinarily if the eye-witnesses are named in the F.I.R. But the Investigating Agency happens to record their statements after lapse of some time, this cannot possibly make such eye-witnesses unreliable."
45. Reverting to the argument of Mr. Azizullah Memon, Advocate that the incident took place on 7- 5-1994 but the respondent was arrested on 8-7-1997 and he remained absconder for quite a long time and his absconsion further lends corroboration for his presence and active participation in the commission of the offence. It may be mentioned that from the perusal of the record and from the evidence led by the respondent it appears that at the time of occurrence, he was in Chain and after the incident according to his own showing he went to Kabul. Thereafter, he settled in Killa Saifullah which shows that he had knowledge of the case against him but he remained absconder.
His remaining absconder for such a long time further supports the testimony of the eye-witnesses.
In this regard reference may be made to Ayyaz Ali Shah v. The State 1997 SCM R 1296.
46. From the above discussion, we are convinced that the learned Sessions Judge while acquitting the respondent had misread the ocular evidence and had discarded the same without giving any cogent and substantial reasons. It may be pointed out that the conclusion reached by the lower Court from the evidence on record are such that no reasonable person would have reached the same by acquitting the respondent which has resulted in miscarriage of justice. From the material on record we have reached the conclusion that the prosecution had proved its case against the respondent beyond any shadow of doubt. Thus, the impugned judgment, dated 19-10-1998 passed by Sessions Judge, Pishin is liable to be. Set aside as the appellant is found guilty of causing the murder of Dawud Shah.
47. Adverting to the argument of Sardar Muhammad Lateef Khan Khosa, Advocate that the respondent had proved through evidence that he was not present at the place of .Occurrence on the said date; it may be observed that even the learned trial Court has not laid much emphasis on the plea of alibi raised by the respondent inasmuch as the witnesses produced by the respondent have not been discussed by the learned Sessions Judge. The respondent has been acquitted only on the ground that the prosecution failed to prove the case against him. We are not convinced by the arguments of the learned counsel for the respondent regarding the plea of alibi. The respondent in his defence produced D.W.1 Dr. Shabir Ahmad who produced certificate Exh.D.1 indicating that he was admitted at the hospital in Gandawa District Jhal Magsi. From the perusal of the record it appears that the doctor was not summoned from Gandawa. At the time when he appeared before the trial Court, he was performing duties as Medical Officer, Civil Hospital, Quetta.
Certificate Exh.D.1 produced by him is photo copy and original has not been produced. Further the concerned register was also not produced. It is not understandable as to how Exh.D.1 was produced as the doctor had already been transferred to Civil Hospital, Quetta and as to how he was in possession of the photostat copy of the certificate Exh.D.1. Admittedly if the said document was objected to by the learned counsel for the complainant, and rightly so, but from document Exh.D.1 it appears that the same was prepared at a later stage and purported to have been issued on 22-5- 1995. Thus, without production of the register from the concerned hospital, story of being admitted at Civil Hospital, Gandawa appears to be concocted. The other witnesses D.W.2 and D.W.3 do not appear to be confidence inspiring and from putting prosecution and defence evidence in juxtaposition the prosecution case seems to be more plausible and convincing. Thus, in our considered opinion the plea of alibi taken by the respondent is concocted and is not convincing.
Therefore, the said plea is repelled.
48. Regarding the question of sentence as to what the sentence should be, it may be observed that the motive alleged in the F.I.R. Is that last year Dawud Shah had beaten the nephew of Abdul Ali and to avenge the same, the said incident took place. The prosecution though has set up this motive but has failed to prove the same. In the circumstances we are inclined to impose lesser punishment upon respondent Abdul Ali. Thus, he is convicted under section 302(b), Cr.P.C. And is sentenced to suffer R.I. For life. Benefit of section 382-B, Cr.P.C. Is also extended to him.
4.9. The upshot of the above discussion is that the appeal is accepted and the appellant who is already confined in District Jail, Quetta, be transferred to Central Jail, Mach to carry out his sentence.