2019 P Cr (PLP)

SADIQ MAHMUD KHURRAM, J.

The appellants namely Allah Wasaya son of Ghulam Haider and Bilal Ahmad alias Billa son of Allah Wasaya were tried along with co-accused namely Mst. Kaneez Mai, Mst. Hameed Mai, Raheem Bakhsh, Abdul Rasheed, Nasrullah, Saifal, Muhammad Hanif, Falak Sher and Farooq Ahmad( since acquitted) by the learned Additional Sessions Judge-II, Jampur, in case FIR No. 114 of 2011 dated 05.5.2011 registered at Police Station Saddar Jampur, District Rajanpur, under sections 302, 324, 148, 149, P.P.C. for committing the Qatl-i-amd of Bahadar Khan (deceased) and Jan Muhammad (deceased). The learned trial court vide judgment dated 26.4.2014 convicted Bilal, Ahmad alias Billa (convict) and Allah Wasaya (convict) and sentenced them as infra:

1. Allah Wasaya: i) Death under section 302(b), P.P.C. as Tazir on two counts for committing Qatl-i-amd of Bahadar Khan (deceased) and Jan Muhammad (deceased) and pay Rs.2 Lac each as compensation under section 544-A, Cr.P.C. to the legal heirs of both the deceased which was ordered to be recovered as arrears of land revenue and if not recovered the convict was further directed to undergo six months of imprisonment. The convict was ordered to be hanged by his neck till death. ii) Rigorous imprisonment for seven years under section 324, P.P.C. with fine of Rs. 25000/- and in default thereof, to further undergo two months of simple imprisonment. iii) Daman of Rs. 25000/- to be paid to Mst. Bachal Mai under section 337-F(iii) and in case of default in payment of Daman amount, ordered to remain in jail.

2. Bilal Ahmad alias Billa. i) Death under section 302(b), P.P.C. as Tazir on two counts for committing qatl-i-amd of Bahadar Khan (deceased) and Jan Muhammad (deceased) and pay Rs.2 Lac each as compensation under section 544-A. Cr.P.C. to the legal heirs of both the deceased which was ordered to be recovered as arrears of land revenue and if not recovered the convict was further directed to undergo six months of imprisonment. The convict was ordered to be hanged by his neck till dead. ii) Rigorous imprisonment for seven years under section 324, P.P.C. with fine of Rs. 25000/- and in default thereof, to further undergo two months of simple imprisonment. iii) Daman of Rs. 25000/- to be paid to Mst. Bachal Mai under section 337-F(iii) and in case of default in payment of Daman amount, ordered to remain in jail. The co-accused namely Mst. Kaneez Mai, Mst. Hameed Mai, Raheem Bakhsh, Abdul Rasheed, Nasrullah, Saifal, Muhammad Hanif, Falak Sher and Farooq Ahmed were however acquitted by the learned trial court.

2. Feeling aggrieved, Allah Wasaya (convict) and Bilal Ahmed alias Billa (convict) lodged Criminal Appeal No.95 of 2015 against their conviction and sentences. The learned trial court submitted Murder Reference No. 43 of 2014 under section 374, Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to appellants Allah Wasaya and Bilal Ahmad alias Billa. We intend to dispose of above said Criminal Appeal No.95 of 2015 and Murder Reference No.43 of 2014 through this judgment.

3. Precisely the facts necessary, as divulged in the statement of Mst. Naseem Mai (PW-3) are as under: "About two years and four months before, I went to Tibba Chandia to see my father three days prior to the day of occurrence. I was present in the house of Abdul Majeed P.W. along with Bahadur, Jan Muhammad, Haji Majeed, Riaz, Rafique, Bachul Mai, Wasso Mai, Mst. Shamim. It was about 5.00 p.m. All of sudden, Bilal accused armed with repeater, Allah Wassaya, Muhammad Hanif, Saifal, Falak Sher, Rahim Bakhsh, Nasrullah, Rashid, present in the court and Farooq (since P.O.), all armed with guns .12 bore, Kaneez Mai and Hameed Mai came to our house. They made a Lalkara that they will take revenge for the murder of Mazhar. Firstly, Bilal accused made a fire shot with his repeater which hit my father Bahadur Khan on his left shoulder. Hanif accused also made a fire shot with his gun .12 bore which hit my father on his chest. The fire shot made by Nasrullah accused hit Jan Muhammad, my uncle, on his head. Allah Wassaya accused also made fire shot hitting Jan Muhammad on his face and left eye. The fire shot made by Rashid accused hit on left shoulder of my aunt Mst. Bachul Mai P.W. Farooq, Rahim Bakhsh, Falak Sher and Muhammad Saifal accused made fire shots from their respective weapons which hit my father Bahadur and uncle Jan Muhammad. The lady accused Mst. Kaneez Mai and Hameed Mai had been providing live cartridges to the male accused persons. We raised hue and cry upon which inhabitants of that area attracted at the spot and accused persons went to their houses along with their respective weapons. My father Bahadur and Jan Muhammad succumbed to the injuries at the spot while Mst. Bachal Mai received serious injuries. The motive for the occurrence is that Mazhar, brother of Bilal accused was murdered by Tahir etc. about 8/9 months prior to this occurrence. The police arrived at the spot and I made my statement before the police which was read over and explained to me and I thumb marked the same as token of its correctness. The said statement is Ex.PB. The police dispatched the dead bodies to the mortuary while the injured Mst. Bachul was sent to the hospital for medical examination". The oral statement of Mst. Naseem Mai (PW-3) was reduced into writing by Kazim Hussain SI (PW-15) who sent the said statement (Exh.PB) to the police station where Manzoor Ahmad ASI (PW-8) registered formal FIR (Exh.PB/1).

4. The learned trial court framed charges against the appellants on 24.8.2013 to which they pleaded not guilty and the learned trial court proceeded to examine the prosecution witnesses.

5. The prosecution/complainant in order to prove its case got recorded statements of eighteen witnesses. Mst. Naseem Mai (PW-3), Mst. Bachal Mai (PW-4) and Riaz Ahmad (PW-5) gave evidence regarding the ocular account. Sadiq Hussain, Patwari (PW-1) prepared the scaled site plan of the place of occurrence (Exh. PA). Bashir Ahmad 396/C (PW-2) stated that on 14.11.2012 he took three parcels said to contain weapons to the office of Punjab Forensic Science Agency. Abdul Razzaq 280/C (PW-7) stated that he escorted the deadbody of Jan Muhammad and Bahadar Khan for their postmortem examination at THQ, Jampur and after the postmortem examination last worn clothes of both the deceased were taken into possession vide recovery memo ('Exh.PP) and (Exh. PN) respectively. Khadim Hussain SI (PW-9) stated that he arrested co-accused Farooq Ahmad (since acquitted). Inait Ullah 170/HC (PW-10) stated that on 5.5.2011 he received three parcels from Kazim Hussain SI (PW-15) which he handed over to Ghulam Shabbir 197/C (PW-18). Khalil Ahmad 4112/HC (PW-12) stated that on 14.11.2012 he received three sealed parcels said to contain weapons which he handed over to Bashir Ahmad 396/C (PW-2). Ghulam Yaseen (PW-14) identified the dead body at the time of occurrence and also witnessed the recovery of repeater (Exh.P5) from the possession of Bilal alias Billa (appellant) and also witnesses recovery from co-accused Muhammad Hanif (since acquitted) and Falak Sher (since acquitted) of guns (Exh.P6 and Exh.P7) respectively. Mehr Hussain 306/C (PW-16) stated that he executed the non-bailable warrants of arrest as well as proclamation under section 87, Cr.P.C. relating to Bilal appellant, Allah Wasaya, appellant, and Muhammad Hanif, Saifal, Falak Sher, Raheem Bakhsh, Nasrullah, Rasheed Ahmad and Farooq (since acquitted). Ghulam Shabbir 197/C (PW-18) stated that he took the parcels said to contain blood stained earth and empties to the office of of Chemical Examiner and Punjab Forensic Science Agency. Kazim Hussain SI (PW-15) investigated the case from 5.5.2011 till 3.10,2011 detailed about the investigation conducted by him before the learned trial court. Munir Hussain Inspector (PW-13) investigated the case on 7.2.2012 whereas Sultan Mahmood SI (PW-17) investigated the case on 28.6.2012 till 15.11.2012 detailed about the investigation conducted by him before the learned trial court.

6. The prosecution also got examined Dr. Sabir Ali Rind, (PW-6) who was posted as Medical Officer at THQ Hospital, Jampur, and on 5.5.2011 at about 12.00 mid night conducted the post-mortem examination of Jan Muhammad son of Muhammad Bakhsh (deceased). Dr. Sabir Ali Rind (PW. 6) while examining Jan Muhammad (deceased) observed as under: "INJURIES:

1. There were multiple group of firearm injuries in an area of 15 c.m x 15 cm involving left middle of all forehead, going up to left eye. Left temporal region with middle of left cheek, involving the root of the nose.

2. Injury No.2 damaging of left eye. Those were firearm injuries measuring each of 1/2 c.m. x 1/2 c.m. with blackening and inverted margins. These were entry wounds, these were going deep. OPINION: In my opinion all the injuries were ante mortem, caused by firearm, so the death occurred due to injury to vital organ (brain), leading to severe hemorrhage and shock, so the death occurred in ordinary course of nature. Probable duration between injuries and death was immediate and between death and postmortem Examination was 07-08 hours. Dr. Sabir Ali Rind, (PW-6) also conducted the postmortem examination on the dead body of Bahadar Khan son of Muhammad Bakhsh on the same day. Dr. Sabir Ali Rind, (PW-6) while examining Bahadar Khan (deceased) observed as under: "EXTERNAL INJURIES: A group of firearm injuries 30 c.m. x 30 c.m on left outer side of left shoulder to left arm just above elbow, involving the left side of chest, laterally up to left nipple, these are firearm injuries, 1/2 c.m. x 1/2 c.m. of each equal size going deep with inverted margins, those were entry wounds, no burning, no blackening seen, with corresponding holes on Qamiz. There was fracture of left humorous. OPINION: In my opinion all the injuries were ante mortem, caused by firearm, causing injury to vital organs, lungs and heart leading to severe haemorrhage and shock. Death occurred due to injury to lungs and heart which were sufficient to cause death in ordinary course of nature. Probable duration between injuries and death was immediate and between death and postmortem Examination was 06-07 hours".

7. On 20.2.2014, the learned ADPP gave up witnesses namely Abdul Majeed, Muhammad Rafique, Wasoo Mai, Shameem Mai and Muhammad Yameen. The learned ADPP closed the prosecution evidence on 16.4.2014 after tendering the report of Serologist (Exh.PX), report of Serologist (Exh.PY) the report of Chemical Examiner (Exh.PV), Chemical Examiner (Exh.PW) and the report of Punjab Forensic Science Agency (Exh.PZ).

8. After the closure of prosecution evidence, the learned trial court examined Allah Wasaya (appellant) under section 342, Cr.P.C. and in answer to question why this case against you and why the PWs have deposed against you, he gave the following reply: "I am innocent. I have no concern whatsoever with the alleged occurrence. The alleged occurrence is blind and un-witnessed. I have falsely been involved in this case due to previous enmity with the prosecution witnesses regarding the murder of my son Mazhar alias Daddoo who was murdered and my son Javed was injured prior to the alleged occurrence by Noor Muhammad (brother of both the deceased of this case). Riaz Ahmad son of Abdul Majeed PW-5 of this case, Irshad Ahmad son of Abdul Majeed and Tahir (brother-in-law of Noor Muhammad). In the above said case, Noor Muhammad has been convicted and sentenced to death while Riaz Ahmad was also convicted and sentenced to life imprisonment by the learned Addl. Sessions Judge-I, Jampur on 10.7.2013 in case FIR No. 641/2010 dated 15.9.2010 under section 302/324/34 of P.P.C. P.S. Saddar Jampur. All the PWs are closely related inter se as well as with both the deceased and are inimical towards us and interested witnesses, so for the said reason, they have falsely deposed against me and my relatives. No independent witness was produced by the prosecution against us. During police investigation, I was declared innocent and was placed in column No.2 of the report under section 173 of Cr.P.C." Similarly, learned trial court examined Bilal alias Billa (appellant) under section 342, Cr.P.C. and in answer to question why this case against you, he gave the following reply: "I am innocent. I have no concern whatsoever with the alleged occurrence. The alleged occurrence is blind and un-witnessed. I have falsely been involved in this case due to previous enmity with the prosecution witnesses regarding the murder of my brother Mazhar alias Daddoo who was murdered and my brother Javed was injured prior to the alleged occurrence by Noor Muhammad (brother of both the deceased of this case). Riaz Ahmad son of Abdul Majeed PW-5 of this case, Irshad Ahmad son of Abdul Majeed and Tahir (brother-in-law of Noor Muhammad). In the above said case, Noor Muhammad, has been convicted and sentenced to death while Riaz Ahmad was also convicted and sentenced to life imprisonment by the learned Addl. Sessions Judge-I, Jampur on 10.7.2013 in case FIR No.641/2010 dated 15.9.2010 under section 302/324/34 of P.P.C. P.S. Saddar Jampur. All the PWs are closely related inter se as well as with both the deceased and are inimical towards us and interested witnesses, so for the said reason, they have falsely deposed against me and my relatives. No independent witness was produced by the prosecution against us." Neither the appellants opted to get themselves examined under section 340(2), Cr.P.C. nor adduced any evidence in their defence.

9. On the conclusion of the trial, the learned Additional Sessions Judge-II, Jampur, convicted and sentenced the appellants as referred to above.

10. The contention of the learned counsel for the appellants precisely is that whole case is fictitious and untruthful. That the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. He further contended that the statements of Mst. Naseem Mai (PW-3), Mst. Bachal Mai (PW-4) and Riaz Ahmad (PW-5) are not worthy of reliance as being highly inimical witnesses. He also argued that the medical evidence was not supportive of the prosecution case. He also argued that the recoveries were result of fake proceedings. He finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of doubt.

11. On the other hand, learned Deputy Prosecutor General along with the learned counsel for the complainant contended that the prosecution has proved, its case beyond shadow of doubt by producing independent witnesses. They further submitted that there was no untoward delay in lodging the FIR. Learned counsel further argued that two deceased died as a result of injuries suffered at the hands of the appellants. They further contended that the medical evidence also corroborated the statements of Mst. Naseem Mai (PW-3), Mst. Bachal Mai ( PW-4) and Riaz Ahmad (PW-5). They further argued that the recovery of gun .12-bore (Exh.P-5) from Bilal alias Billa appellant also corroborated the ocular account. They contended that the appellants had enmity with the deceased and there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offenders with the innocent in this case. They further argued that the appellants were declared proclaimed offenders and this fact also incriminates them. Lastly, they prayed for the rejection of appeal.

12. We have heard the learned counsel for the appellants and learned Deputy Prosecutor General and with their assistance perused the record and evidence recorded during the trial carefully.

13. The whole prosecution case revolves around the statements of Mst. Naseem. Mai (PW-3), Mst. Bachal Mai (PW-4) and Riaz Ahmad (PW-5). They also stated about the motive of the occurrence. These witnesses namely Mst. Naseem Mai (PW-3), Mst. Bachal Mai (PW-4) and Riaz Ahmad (PW-5) were related inter se. Their relationship with the deceased is also on record. During the cross-examination Mst. Naseem Mai (PW-3) stated that Bahadar Khan (deceased) was her father while Jan Muhammad deceased was her paternal uncle. Mst. Naseem Mai (PW-3) during her cross-examination further stated that Noor Muhammad was her paternal uncle whereas Riaz and Irshad were her phuphi zad. Similarly, Mst. Bachal Mai (PW-4) during her cross-examination stated that Bahadar deceased and Jan Muhammad deceased were her brothers. Mst. Bachal Mai (PW-4) during her cross-examination further admitted in her cross-examination that in the murder case of Mazhar, her son was convicted by the trial court however, acquitted by the Court whereas Noor Muhammad was sentenced to death. Mst. Bachal Mai (PW-4) during her cross-examination further stated that Allah Wasaya (appellant) is the father of Bilal (appellant) whereas the acquitted co-accused namely Saifal, Hanif are sons of Kaneez Mai whereas Falak Sher co-accused is son of Hameed Mai co-accused (all since acquitted). Mst. Bachal Mai (PW-4) during her cross-examination further stated that Nasrullah (since acquitted) and Rasheed (since acquitted) are maternal uncles of Mst. Kaneez Mai (since acquitted) whose brother Mazhar was murdered by Noor Muhammad and Noor Muhammad was the real brother of Bahadar Khan (deceased) and Jan Muhammad (deceased). During the cross-examination Mst. Naseem Mai (PW-3) further admitted the existence of enmity between her, on one part and the accused of the case on the other part. In view of the extreme enmity of Mst. Naseem Mai (PW-3), Mst. Bachal Mai (PW-4) and Riaz Ahmad (PW-5) with accused. It was imperative for them to produce evidence of an unimpeachable character in which they have failed miserably.

14. We have already mentioned that along with the appellants their co-accused namely Mst. Kaneez Mai, Mst. Hameed Mai, Raheem Bakhsh, Abdul Rasheed, Nasrullah, Saifal, Muhammad Hanif, Falak Sher, and Farooq Ahmad were tried. The learned trial court acquitted the above mentioned co-accused of all the charges. Mst. Naseem Mai (PW-3) filed a Criminal Appeal No. 300 of 2014 assailing the judgment of the learned trial court, with respect to the acquittal of the co-accused, before this Court. We have perused the order dated 7.11.2018 passed by this Court, in the above mentioned Criminal Appeal No. 300 of 2014, whereby the learned counsel for the appellant in the said appeal withdrew the same and it was dismissed being not pressed. It is also been confirmed by the learned Deputy Prosecutor General, for the State, and the learned counsel for the complainant that the said acquittal has attained finality. The question for determination before this Court is that whether the evidence which has been disbelieved qua the acquitted co-accused of the appellants can be believed against the appellants. The proposition of law in Criminal Administration of Justice that a common set of witnesses of ocular account can be used for recording acquittal and conviction against the accused persons who were charged for the commission of same offence, is a settled proposition. The condition for relying upon the same set of witnesses as against the appellants but rejecting them as against the acquitted co-accused is that such evidence must get independent-corroboration on material particulars. The august Supreme Court of Pakistan in its binding Judgment passed in the case of Imtiaz alias Taj v. The State (2018 SCMR 344) has enunciated the following principle:- "The law is settled that if the eye-witnesses have been disbelieved against some accused persons attributed effective roles then the same eye-witnesses cannot be believed against another accused person attributed a similar role unless such eye-witnesses receive independent corroboration qua the other accused person". We have perused the statements of Mst. Naseem Mai (PW-3), Mst. Bachal Mai (PW-4) and Riaz Ahmad (PW-5), Mst Naseem Mai (PW-3) stated as under: "Firstly, Bilal accused made a fire shot with his repeater which hit my father Bahadur Khan on his left shoulder. Hanif accused also made a fire shot with his gun .12 bore which hit my father on his chest. The fire shot made by Nasrullah accused hit Jan Muhammad, my uncle, on his head. Allah Wassaya accused also made fire shot hitting Jan Muhammad on his face and left eye. The fire shot made by Rashid accused hit on left shoulder of my aunt Mst. Bachul Mai P.W. Farooq, Rahim Bakhsh, Falak Sher and Muhammad Saifal accused made fire shots from their respective weapons which hit my father Bahadur and uncle Jan Muhammad". Similarly Mst. Bachal Mai (PW-4) and Riaz Ahmad (PW-5) also levelled the same allegation regarding the individual role of the appellants as well as the acquitted co-accused. We have perused the statement of Doctor Sabir Ali Rind, MO THQ Jampur ((PW-6) who during cross-examination stated as under: "It is correct that the injuries upon the bodies of Bahadar and Jan Muhammad deceased have occurred due to single single fire shot". It is obvious from the perusal of the above mentioned medical evidence as given by Doctor Sabir Ali Rind (PW-6), that there was only one firearm entry wound on the persons of the deceased namely Bahadar Khan and Jan Muhammad each. The said individual injury on the person of Jan Muhammad deceased was specifically attributed to Nasrullah (acquitted co-accused) and Allah Wasaya (appellant) by all the three witnesses namely Mst. Naseem Mai (PW-3), Mst. Bachal Mai (PW-4). and Riaz Ahmad (PW-5). Similarly, Bahadar Khan (deceased) had received one firearm entry wound which injury was specifically attributed to Muhammad Hanif (acquitted co-accused) and Bilal alias Billa (appellant). It is also in the evidence of the three witnesses namely Mst. Naseem Mai (PW-3), Mst. Bachal Mai (PW-4) and Riaz Ahmad (PW-5) that Farooq, Raheem Bakhsh, Falak Sher and Muhammad Saifal (all since acquitted) also fired at both of the deceased hitting them on their person. We are unable to find any independent corroboration against the appellants and we are unable to distinguish the case of the appellants from the case of acquitted co-accused. For the two entry wounds as many as eight persons were involved. This dishonesty on part of the witnesses has vitiated our trust. We thus are satisfied that the evidence of Mst. Naseem Mai (PW-3), Mst. Bachal Mai (PW-4) and Riaz Ahmad (PW-5) has no worth and is to be rejected outright.

15. Learned District Prosecutor General along with learned counsel for the complainant have also laid much premium on the abscondence of the appellants as proof of their guilt. Suffice is to say that abscondence has never been considered in isolation and is only considered as a corroborative piece of evidence. Reliance is placed on the cases of "Muhammad Farooq and another v. The State" (2006 SCMR 1707) and "Nizam Khan and 2 others v. The State" (1984 SCMR 1092) and Rohtas Khan v. The State (2010 SCMR 566).

16. Learned Deputy Prosecutor General along with the learned counsel for the complainant have also relied upon the recovery of gun .12 bore (Exh.P5), from Bilal alias Billa, appellant. A perusal of the report of Punjab Forensic Science Agency (Exh.PZ) reveals that the parcels pertaining to empties as well as the recovered weapons were received at the said Punjab Forensic Science Agency on the same day that is 15.11.2012. No reliance can be placed on the said report of Punjab Forensic Science Agency (Exh.PZ). The august Supreme Court of Pakistan in the case of Nasrullah alias Nasro v. The State (2017 SCMR 724) at page 727 has held as under: "The alleged recovery of a pistol from the appellant's possession during the investigation was legally inconsequential because the report of the Forensic Science Laboratory brought on the record shows that the recovered pistol and the secured crime-empties had been received by the Forensic Science Laboratory together on one and the same day".

17. Considering all the above circumstances, we entertain serious doubt, in our minds regarding the involvement of Allah Wasaya and Bilal alias Billa, appellants, in the present case. It is settled principle of law that for giving benefit of doubt, it is not essential that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right. The august Supreme Court of Pakistan in the case of Muhammad Mansha v. The State (2018 SCMR 772) has enunciated the following principle: "Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession but as a matter of right." 18 For what has been discussed above Criminal Appeal No.95 of 2015 filed by Allah Wasaya and Bilal alias Billa, appellants is accepted, and the conviction and sentences of the appellants awarded by the learned trial court through the impugned judgment dated 26.4.2014 are hereby set aside. Allah Wasaya and Bilal alias Billa appellants are ordered to be acquitted. They are directed to be released forthwith if not required in any other case.

19. Murder Reference is answered in Negative and the death sentence of Allah Wasaya and Bilal Ahmad alias Billa appellants is Not Confirmed. MH/A-37/L Appeal accepted.