AMAN ULLAH KHAN, J.---This Judgment shall dispose of Criminal Appeal No,167/1999, filed by convicts Haji Amir Muhammad and others and Criminal Acquittal Appeal No,171 of 1999, filed by complainant Haji Nazar Muhammad, against the acquittal of respondents Muhammad Naeem and others, as both of them arise out of common judgment dated 18th June, 1999, passed by learned Additional Sessions, Judge, Pishin. Briefly, the facts are, that the complainant (P.W.1 Haji Nazar Muhammad) lodged a report with Levies Thana Band Khushdil Khan on 27-5-1997, alleging therein, that on the even date, he came to his house and at about 6-00 p.m. He was informed by the womenfolk, that accused Muhammad Karim, Muhammad Essa, Amir, Salahhuddin, Naeem alias Bilay and Mehmood, came into a Pick-up to his orchard situated in Killi Kamalzai and had also brought P.W.2 Ali Dost, by tying his hands and feet, and near the Tubewell assaulted his sons Agha Muhammad and Abdul Basit with sticks and Dandas, Agha Muhammad received serious injuries. On such report P. W.14 Abdul Rehman, Naib Tehsildar, Pishin was entrusted the investigation of case, who on the basis of Fard-e-Biyan (Exh.P/1-A) lodged F.I.R. (Exh.P/1-B). He then proceeded to the place of incident, where he came to know, that injured Agha Muhammad was taken into a Tractor Trolley to Civil Dispensary, Killi Kamalzai, from where he was taken to District Hospital, Pishin and after giving him necessary medical aid, he was referred to Civil Hospital, Quetta, due to seriousness of injuries. The Naib Tehsildar, prepared site-plan (Exh.P/14-A), secured blood-stained earth and also took into possession two iron-rods vide memo. (Exh.P/10-A). He also prepared the sketch Exh.P/14-B), from where the blood-stained earth and iron-rod were taken into possession.
He recorded statements of witnesses. On 30-5-1997, Agha Muhammad died at Civil Hospital, Quetta, therefore, he handed over the dead body to his legal heirs vide receipt (Exh.P/14-C). He also took into possession blood-stained clothes vide Exh.P/12-A, arrested the accused persons, nominated in the F.I.R. And at the instance of appellant Haji Amir Muhammad, recovered Danda vide memo. (Exh.P/11-A). He sent the recovered articles for chemical analysis and received report of the Chemical Analyst (Exh.P/9-A). He also obtained the Medical Certificate of deceased Agha Muhammad (Exh.P/8-A) and on completion of investigation submitted challan (Exh.P/14-D), before the learned Additional Sessions Judge, Pishin. Charge was framed on 13-11-1997, under sections 302/365/337- ADF/147/148/109/34, P.P.C., which was refuted by the appellants.
To prove its case, prosecution examined as many as 14 witnesses at the trial. They are:-- P.W. I. Haji Nazar Muhammad. He is the complainant. Here iterated the contents of the F.I.R.
However, he deposed that he was not present at the place of incident and the names of accused persons were disclosed to him by his family members. He produced the Fard-e-Biyan (Exh.P/1-A), on the basis of which FIR (Exit. P/10--B) was lodged. P.W.2. All Dost. He deposed that on the day of incident at about 3-30 p.m. The accused forcibly put him in a Pick-up after tying his hands and feet and after beating him, brought him to the Tube-well of complainant Haji Nazar Muhammad. He further stated that accused parked the pickup in the water channel and left him there. After a while, they came back after assaulting Agha Muhammad and Abdul Basit. The accused fled away in the Pick-up, he went to the Tube-well and saw Agha Muhammad and Abdul Basit were lying injured. Then Agha Muhammad was taken into a Tractor- trolley to the Civil Dispensary, Killi Kamalzai, from where he was referred to District Hospital, Pishin.
After giving him first aid, he was referred to Civil Hospital Quetta. He further deposed that motive for the said incident was, that on 26-5-1997, appellant Amir Muhammad and P.W. Abdul Basit quarreled on the overtaking of Bus and Tractor and on the intervention of the people they were separated and Amir Muhammad had threatened Abdul Basit that he would see him. P.W.3. Abdul Basit. He is an eye-witness and was also injured in the incident. He deposed that one day prior to the incident, he overtook the bus, which was being driven by appellant Amir Muhammad, on which he also overtook him and started abusing him,, as to why he crossed his Bus wrongly. He further stated, that they started abusing and threw stones at each other and while leaving appellant Amir Muhammad threatened him, that he would see him. On the next day, at about 4-00 'p.m. He was working at the Tube-well near his house when the accused persons namely Muhammad Karim, Muhammad Essa, Muhammad Naeem, Salahuddin, Amir Muhammad, Fazal Muhammad, Naseem, Muhammad Shafi and Mehmood, came there duly armed with Dandas and they attacked him and his brother Agha Muhammad. He further stated that Salahuddin hit Agha Muhammad with iron-road at his head and Mehmood and Muhammad Rahim also hit him with iron-rod on his forehead and Amir Muhammad hit him on his face with Danda. While accused Fazal Muhammad and Naseem, attacked him. After beating them the accused persons fled away from the place of occurrence. Thereafter Ali Dost came there and they took Agha Muhammad, who was seriously injured, to Civil Dispensary, Killi Kamalzai, from where he was taken to District Hospital, Pishinand after giving him first aid, he was referred to Civil Hospital, Quetta. P.W.4. Abdul .Saboor. He is witness of incident of 26-5-1997. He deposed that on the said date, he was coming to his house, when Abdul Basit crossed him on a Tractor and crossed a Bus. After a short while, the Bus overtook him and the driver of the Bus came down and started abusing Abdul Basit. They started abusing each other and in the meanwhile he and the cleaner of the Bus intervened and separated them and while leaving, Amir Muhammad threatened Abdul Basit, that he will not spare him. P.W.5. Muhammad Arshad.He ,is the brother of deceased Agha Muhammad and injured Abdul Basit. He deposed that he was informed in his house on 26-5-1997, that quarrel has taken place between Amir Muhammad and Abdul Basit. On the next day i,e, 27-5-1997, he was working near the Tubewell in his Orchard, when the accused persons namely Muhammad Karim, Muhammad Essa, Salahuddin, Amir Muhammad, Naeem alias Bilay, Naseem, Fazal Muhammad, Shafi and Mehmood, came in a Pick-up and assaulted his brother with Danda and iron-rods. He ran towards his house to inform the house mates. ON his return, he saw that Agha Muhammad was seriously injured and was unconscious while Abdul Basit was semi-conscious and Ali Dost was also present. Thereafter this brother Agha Muhammad was taken to the Civil Dispensary in a Tractor-trolley and then to District Hospital, Pishin, from where he was referred to Civil Hospital, Quetta. Later on, his---, brother died in Civil Hospital, Quetta. P.W.6. Muhammad. Younas. He examined injured Abdul Basit on 27-5-1997 and issued Medical Certificate Exh.P/6-A, wherein he noted following injuries on his person:--
1. Bruises on the left 2.Shoulder. Abrasion on the back side.
3. Bruise on the left leg.
4. Swelling and abrasion on the right knkle-joint. Nature of injuries: Simple. Duration: Fresh. Weapon: Blunt. P.W. 7 Fateh Muhammad.--He stated that he is not acquainted with the facts of the case, as such, he was declared hostile. P.W. 8 Shabbir Ahmad Magsi.--He examined the deceased Agha Muhammad and issued Medical Certificate (Exh.P/8-A) wherein he noted following injuries on the person of deceased:--
(1) Patient is unconscious.
(2) Stitched wound on left parietal region (7 stitches).
(3) Stitched wound on right forehead (2 stitches).
(4) Broken upper insiser (teeth).
(5) Bleeding from nose and mouth. Patient was referred to Neuro-Surgery Ward and expired in Ward on 30-5-1997 at 3-30 a.m. X-Ray skull under No,9513 dated 27-5-1997 done. Report shows to bony lesion seen. Probable cause of death: Head injury, internal bleeding, shock and death. P.W.9 Syed Abdul Jabbar, Chemical Analyst.--He carried out chemical analysis of the blood- stained clothes and iron-rods and issued Certificate (E)di.P/9-A) and opined as follows:-- Opinion: Chemical and serological examination of the suspected blood-stained articles enclosed in the above intact parcels was carried out and revealed the following results-- One long Irony bar (Selakh) of Parcel No,1 and articles of Parcel No,2 and Parcel No,3, were stained with Human Blood and belong to Blood Grouping AB+ while a small Irony Bar (Selakh) of Parcel No,1, and articles of Parcel No,4 were not stained with Human Blood. P.W.10 Rahimullah.--He is marginal witness to the recovery of blood-stained earth and Iron rods, from the place of incident which were taken into possession vide Memo. Exh.P/10-A. P.W.11 Ahmad Jan, Levies Hawaldar. He is marginal witness to the recovery of Danda at the instance of appellant Haji Amir Muhammad effected vide Memo. Ddi.P/11-A. P.W.12 Habibullah. In his presence complainant Haji Nazar Muhammad produced the blood- stained clothes of deceased, which were taken into possession vide Memo. Exh.P/12-A. P.W.13 Abdul Baqir. He was declared hostile, as he showed ignorance about the facts of case. P.W.14. Abdul Rehman, Naib-Tehsildar. He is the Investigating Officer of case and on completion of investigation submitted challan Exh.P/14-D. Thereafter appellants were examined under section 342, Cr.P.C. Wherein they denied the prosecution case. They also recorded their statements on oath as envisaged under section 340(2)
Cr.P.C. And pleaded innocence.
After hearing the parties, learned trial Court convicted appellants Haji Amir Muhammad, Salahuddin and Mehmood under section 302(b), A.P.C. And sentenced each of them to suffer life imprisonment. However, while giving benefit of doubt to the remaining accused persons, they were acquitted of the charge. As such, the appellants have challenged their conviction, whereas the complainant has impugned the judgment of trial Court, to the extent of acquitting the remaining accused persons. Mr. Muhammad Aslam Chishti, learned counsel for appellants contended as follows:-- A. That the F.I.R. Is based on hearsay evidence of P.W.1 Nazar Muhammad, who was not an eye- witness. The same having been lodged after consultation and the motive so advanced was not mentioned in the F.I.R.
B. The probable cause of death, is not known, as no post-mortem was carried out and when the deceased was shifted to Civil Hospital, Quetta, all the wounds had been stitched and the dimension of the injuries was not mentioned. Ocular evidence is falsified by medical evidence. D. The appellants cannot be held responsible for Qatl-i-Amd, but each of them is to be burdened with individual liability. E. The conviction has been awarded on the plea of defence which is not sustainable under the law. Mr. Ehsanul Haq, learned counsel for the complainant, while opposing the appeal contended, that there is convincing evidence against the appellants and the presence of P.Ws. Is admitted at the place of incident. The incident has also not been denied by the defence. He further contended, that while inflicting injuries on the person of deceased, the accused persons knew, that the injuries were likely to cause death of the deceased, thus they have been rightly convicted. Mr. Ghualm Mustafa Mengal, learned A.A.G. Also supported the arguments of learned counsel for complainant. We have heard the learned counsel for parties and also perused the record of case, minutely. Before dilating upon the arguments of learned counsel, it may be observed that the salient features of the case are, that the appellants and others came to the place of incident and it has also been admitted, that P.W. Ali Dost was also brought by them to the scene of occurrence.
Though the defence has disputed the manner in which, the incident took place, but the incident has not been denied. Inasmuch as the place of incident has also not been disputed. The prosecution case mainly hinges upon; the statements of eyewitnesses namely Abdul Basit and Muhammad Arshad, recovery of iron-ids and Danda at the instance of appellant Amir Muhammad and ale circumstantial and medical evidence. Adverting to the arguments of learned counsel for appellants, that F.I.R. Was lodged by P.W.1 Nazar Muhammad, who was not the eyewitness and he was informed about the incident by the womenfolk and no motive was given in the F.I.R. In this behalf, the evidence of P.W.3 Abdul Basit and P.W.5 Muhammad Arshad, can be examined. P.W. Abdul Basit, gave a detailed account of the incident which took place prior to the happening of the present incident, when due to overtaking of the Bus appellant Aniir Muhammad and the witness had scuffled with each other and they were separated by P.W.4 Abdul Saboor. In the circumstances of present case, it is immaterial and would not affect the prosecution case, if the motive has not been given in the F.I.R. i,e, the details of the incident, which happened on 26-5-1997, which led to the main incident. It may be noticed .That the F.I.R. Is based on the information received by complainant from the womenfolk of his house, who only narrated him the incident of 2t5-1997, wherein Abdul Basit and Agha Muhammad deceased, received injuries. The possibility cannot be ruled out, that the incident of 26-5-1997, was not brought to the knowledge of complainant, but evaluating the statement of P.W. Abdul Basit, it can be concurred, that the incident of 26-5-1997 took place, which is further confirmed by P.W. Abdul Saboor. Though he is related to the complainant party, but there is nothing on record to show, that he has falsely implicated the appellant Haji. Amir Muhammad in the commission of offence. He was cross- examined at length and he stood firm to the test of the same. Thus the motive as alleged by the prosecution has been successfully established. As far as the statement of P.W.3 Abdul Basit is concerned, he deposed that appellants alongwith other acquitted accused persons came to the place of incident and they injured him and the deceased, by giving them blows with iron-rod and Danda. Regarding the injuries sustained by Agha Muhammad deceased, were attributed to appellants Salahuddin, Amir Muhammad and Rahim, whereas according to him Fazal Muhammad and Naseem attacked him. The injuries inflicted on the deceased, have also notbeen disputed by the defence, as the plea taken was, that the appellants and others have gone to purchase Tomato Saplings, on which the deceased and P.W. Abdul Basit became angry with Ali Dost and thereafter started fighting with the appellant and Abdul Basit tried to hit the appellants, instead hit the deceased with iron-rod, which was received by him on his head, due to which, he became unconscious. The plea of defence is very improbable and unconvincing. It may be observed, that the incident took place in the month of May, 1997, whereas the saplings of vegetables are planted much earlier towards February-March, and nothing has been shown on record, that the complainant party was having saplings or were doing such business. Had it been so, there was no reason or cause with them, to have fought with the appellants. The prosecution version seems very probable and convincing. The appellants along with other acquitted accused, first of all went to the place of Ali Dost brought him to the place of incident and then attacked the deceased and P.W.3 Abdul Basit. The incident was also witnessed by P.W. Muhammad Arshad. His presence has also been admitted by P.W. Amir Muhammad, while he was giving his statement on oath, wherein he stated that when they went to the place of incident Agha Muhammad, Abdul Basit and Muhammad Arshad were present there.
P.W. Abdul Basit and Muhammad Arshad are the eye-witnesses. Inasmuch as, Abdul Basit has also sustained injuries, both of them have given detailed account of the incident, wherein they had attributed the role of giving fatal blows to deceased to appellants. Intrinsically the worth of their evidence is reliable and unimpeachable.
It is settled that even conviction can be based on solitary statement of a witness and no particular number of witnesses are required for the proof of a fact, as importance is given to the quality than the quantity of evidence. It may be observed, that corroboration for a solitary witness is also not a statutory requirement, as whether the said principle be adopted or not, depends on the circumstances of each case. In the case in hand, no previous enmity of Abdul Basit has been alleged against the appellants, except the incident of 26-5-1997, which also took place at the spur of moment on the overtaking of Tractor and the Bus. P.W. Abdul Basit, who stood firm to the test of cross-examination, has given consistent evidence in a straightforward manner, which does not suffer from infirmities. The defence has failed to impeach his statement and it is very much in consonance with the probabilities and the evidence in the circumstance of the case, it is confidence inspiring and intrinsic value of the same rings true. The contention of learned counsel Mr. Muhammad Aslam Chishti, is devoid of force, that the statement of P.W.3 Abdul Basit cannot be relied upon, as he was inimical towards the appellants and was also the real brother of deceased and thus had motive to falsely implicate them. It may be mentioned, that mere relationship is no ground to discard the testimony of awitness. It is very improbable that a person would let the actual culprits go sort free and would implicate the innocent persons falsely for the murder of one's own brother. In this behalf, reliance can be placed on Irshad Ahmad and others v. The State and others PLD 1996 SC 138. P.W. Abdul Basit has not exaggerated the incident, as to make it improbable, he has given true account of the incident and his statement is quite consistent with the statement made under section 161, Cr.P.C. The role of fatal injuries inflicted to the deceased has been ascribed to the appellants jointly. Though there were other accused persons at the time of incident, but injuries sustained by the deceased have not been attributed them. As far as the minor contradictions are concerned, the same do not go to the root of case nor affect its salient features. As observed hereinabove, neither the incident nor the place has been denied, but as per defence version the deceased was injured by Abdul Basit. We have already disbelieved the said plea for reasons, given in the preceding paras.
Coming to the next contention of learned counsel, that the medical evidence falsifies the ocular testimony. Though neither the dimensions of the injuries have been given in the medical certificate nor the Doctor, who examined the deceased Agha Muhammad was produced but the fact remains, that the deceased has received three injuries, which are quite in conformity with the ocular evidence. The deceased received head injury and an injury on his mouth and of, the forehead. P.W. 3 stated that Salahuddin inflicted injury with iron-rod on the head of deceased, whereas Mehmood hit him on his forehead and Amir Muhammad attacked the appellant with a Danda on his face. The injuries mentioned at Serial No,3, 4 and 5 in Medical Certificate (Ex1LP/8-A) fully corroborate the statement of P.W.3 Abdul Basit. In such circumstances, it is immaterial, if the dimension of the injuries is not given, whereas the probable cause of death, was due to head injury, internal bleeding and shock.
Mr. Muhammad Aslam Chishti, learned counsel lastly contended that the fatal injury cannot be attributed with certainty to any of the appellants, as no post-mortem was conducted. In this behalf, the contention of Mr. Ehsanul Haq, learned counsel, has substance, that each of the appellants had knowledge that the blows inflicted on the vital part of the deceased, were likely. To cause death of the deceased, if the provisions of section 302, P.P.C. Are not attracted, the cause falls under section 302, P.P.C. And the appellants would be liable for Qatl-i-Amd. It may be noted here, that the role attributed to the appellants, cannot be individualized. Thus, in such circumstances, it cannot be said, that each of them are individually liable for the injuries caused to deceased. The presence of appellants has been fully established. The manner in which the incident took place and injuries inflicted upon the person of deceased make the appellants vicariously liable for the commission of offence. In this regard reliance is placed on the case of Muhammad Ali alias Mohamrnadah v. The State 1983 SCM R 1211 wherein following observations were made:- It is no doubt true that the three fire-arm injuries found on the body of deceased are identical in nature and- dimensions and the medical officer has expressed the opinion as already observed, that the possibility of one weapon being used cannot be excluded or the use of identical weapons if there were more than one persons using rifles. The balance of probabilities would apparently be against such highly coincidental situation where two persons would be armed with identical rifles.
Also the effective shots fired could be the work of one person armed with a fire weapon which could fire successive shots with the weapon at a helpless unarmed victim. However, merely because it is not certain as to which of the two appellants must have used his weapon so far as the effective shots are concerned, is no ground for holding that the other who did not use. The weapon effectively was not present during the occurrence. The participation of the appellants has been fully established on the ocular testimony which is reliable and independent. This argument further omits to take into consideration the effect of the provisions of section 149, P.P.C., which places vicarious liability on every member of an unlawful assembly if the offence is committed in prosecution of the common object or is known to be likely to be committed in prosecution of such object , although such person may not himself be directly responsible 1-n. The act of killing. In Muhammad Khan v. State PLD 1977 SC 446 this Court observed. In a situation like this, if two assailants lying in ambush having suddenly surprised the complainant party had fired in quick succession almost simultaneously the possibility of bona fide error of perception as to whose shot hit and whose missed could not be completely excluded from consideration and once the witnesses were believed, both the assailants should have been convicted without anyone of them being found entitled to benefit of doubt."
Thus, in view of the above discussion it is held, that the prosecution has proved its case beyond reasonable doubt, against the appellants Amir Muhammad, Mehmood and. Salahuddin. Adverting to the argument of Mr. Muhammad Aslam Chishti, Advocate, regarding the acquitted respondents. Learned counsel contended, that the respondents, have been acquitted after proper appreciation of evidence on record and no fatal role has been attributed to them. As for as the abduction of Ali Dost is concerned, that has also not been proved on record. Mr. Ehsanul Haq, learned counsel for complainant also even did not press the appeal, as far as the case of abduction of Ali Dost is concerned, but only contended that the respondents in furtherance of common intention came to the place.
It has come on record that only respondents Fazal Muhammad and Nascent, have inflicted injuries on the person of P.W. Abdul Basit. The contention of learned counsel Mr. Muhammad Aslam Chishti, has substance that as for as the role attributed to respondents Fazal Muhammad and Naseem is concerned, no offence is made out. Besides the principles regarding appreciation of evidence in an appeal against acquittal are much different than an appeal against conviction. In this regard no specific role has been attributed to the other accused persons (respondents) and only the role of inflicting simple injuries has been attributed to Fazal Muhammad -and Naseem and even Mr. Ehsanul. Haq, learned counsel was at pains to show any infirmity in the impugned judgment, whereby the other accused have been acquitted. In this behalf reliance is placed on Ghualm Sikandar and another v. Mamraz Khan and others PLD 1985 SC 11, wherein following parameters have been laid down, for interference in an appeal against acquittal-- "However, notwithstanding the diversity of facts and circumstances of each case, amongst others, some of the important and consistently followed principles can be clearly visualized from the cited and other case 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 convicted when leave is granted only for the appraisement 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 trial a Court below confirmed the assumption of innocence.
2. The acquittal will not carry the second presumption and will also thus lose 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 principles of re-appriasement of evidence will have to be kept in view while 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 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 would not interfere with acquittal merely because on re-appraisal of the evidence it comes to the 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 for no other purpose. The important test visualized in these cases, in this behalf was that the findings sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous".
Now considering the case of prosecution at the touchstone of the principle laid down by Hon'ble Supreme Court, in the afore-cited judgment, there is nothing on record, to show that the judgment, regarding acquittal of accused-respondents is frivolous, shocking or some material has been disregarded. Though their presence has been shown, but no active participation on their behalf has been proved. It has been alleged that Ali Dost received injuries at the hands of the acquitted respondents, but to substantiate the same, no medical certificate has been placed. Nothing incriminating has been brought on record to show their active participation in inflicting injuries upon the complainant party. Thus no case for interference is warranted in the impugned judgment. Mr. Muhammad Aslam Chishti, learned counsel for the acquitted respondents, pointed out that, even there is no evidence against Tore Baz alias Lali (Absconder) and his case is also on the same footing as that of the acquitted respondents, as such on the principle of consistency, he may also be acquitted of the charge. Mr. Ehsanul Haq, learned counsel for the appellants conceded, that there is no evidence to connect the absconding accused with the commission of offence.
Record indicates, that not a single word has been uttered against the absconding accused Tore Baz alias Lali, by the witness, thus we are inclined to accept the plea of Mr. Muhammad Aslam Chishti, Advocate and accordingly in absentia, acquit the absconding accused Tore Baz alias Lalison of Stana, of the charge. In this behalf reliance is placed on the case of Mohabat Ali and another v. State 1985 SCM R 662.
For the foregoing reasons, both the appeals i,e, Criminal Appeal No,167/99 filed by appellants against their conviction and Criminal Acquittal Appeal NO.171/99, filed by complainant Haji Nazar Muhammad, are dismissed. However, convict-appellants shall be entitled to the benefit of section 382-B Cr.P.C. As extended by trial Court.