1996SCMR324 (PLP)

MIR HAZAR KHAN KHOSO, J.‑‑‑In Criminal Appeals Nos. 338/93 'Muhammad Akram and another v. The State), 10;Q/94 (Bahadur Khan v. Muhammad Arif etc.), 11‑Q/94 (Bahadur Khan v. Muhammad Akram and others), 12‑Q/94 (The State v Muhammad Arif) and 13‑Q/94 (The State v. Muhammad Akram and another), the judgment dated 28‑10‑1993 of a Division Bench of the High Court of Balochistan, Quetta, in Murder Reference No. 8 of 1992, Criminal Appeal No. 163‑A of 1992, Criminal Acquittal Appeal No. 13 of 1993 and Criminal Revision No. 2 of 1993, is impugned, we, therefore, intend to dispose of all of them by this single judgment.

2. The fact giving rise to the above said five appeals are that on 12‑6‑1990 at 11.00 a.m. in heart of Quetta City Dilawar Khan, a student of 9th Class of Sandeman High School, Quetta was murdered. The report thereof was registered on the statement of his real paternal uncle P.W. 1 Bahadur Khan at about 11.20 a.m. on the same day at Police Station City, Quetta. In his statement complainant, Bahadur Khan, has stated that he was working in the Narcotics Department. His nephew namely Dilawar Khan son of Nawab Khan was studying in Sandeman High School, Quetta. At about 11.00 a.m. he alongwith P.W. 8 Haji Mubarak was going to fetch him from the school, when they reached Mansafi Road he saw Dilawar Khan going towards shop. He informed Haji Mubarak that Dilawar was going and he would pick him up. In the meantime he found two persons alighting from a brown coloured car. He identified them to be Muhammad Akram and Muhammad Ishaque. In his presence both of them started firing with pistols/revolvers at Dilawar Khan, who received bullet shots on his body and fell down. Then Muhammad Alam and Mir Hassan fired at him. He raised cries and came down from his car and ran towards them. Muhammad Alam took driving seat of the car and all of them fled away. He and Haji Mubarak went towards Dilawar Khan who had already succumbed to his injuries. He then followed the culprits in his car but they successfully vanished in crowd. He returned to the spot where police had reached earlier and taken the dead body to hospital. The motive for commission of the murder was that on 22‑2‑1990 while driving a pick‑up Dilawar Khan had seriously injured Muhammad Raza, who later had died in the hospital. His father Risaldar, Abdullah Khan, declared the incident as intentional murder. He had declined to compromise. In retaliation thereto abovenamed persons had killed Dilawar Khan. Statement of Complainant 10ahadur Khan was recorded by Jan Muhammad, A.S.I. On the basis of this statement F.I.R. No. 102 was registered by S.H.O. Sheryab Ali at City Police Station, who handed over investigation of the case to Nazir Ahmad, S.I. Nazir Ahmad inspected the place of incident. He prepared the injury and inquest reports of the dead body of deceased Dilawar Khan and also sketch of the site. He recovered blood‑stained earth, four live cartridges, a led of bullet and six empties. He recorded further statement of complainant Bahadur Khan. On 18‑6‑1990 he arrested Mir Hassan. On 27‑6‑1990 he arrested Muhammad Arif, who had voluntarily appeared before him. Muhammad Arif produced before him T.T. Pistol. On 30‑6‑1990 he inspected the Vardat shown by Muhammad Arif. On this day he got recorded 164, Cr. P.C. statement of Muhammad Arif before Magistrate P.W. 4 Zahir Khan Kansi. Muhammad Akram was arrested on 15‑8‑1990 by P.W. 9 Abdul Majid, Inspector of Police. However, after usual investigation Muhammad Akram, Mir Hassan and Muhammad Arif were challaned to face trial before the Court of the Sessions Judge Ad hoc, Quetta, where they did not plead guilty to the charge and claimed their Trial, In support of its case the prosecution examined P.W. 1 Bahadur Khan, eye?witness, P.W. 2 Dr. Muhammad Kaleem Tariq, who conducted post‑mortem on the dead body of Dilawar Khan, P:W. 3 Gul Muhammad, eye‑witness, P.W. 4 Zahir Khan Kansi, who recorded 164, Cr.P.C. statement of Muhammad Arif, P.W. 5 Muhammad Saleem, S.I. Mashir of arrest etc. of Muhammad Arif, P.W. 6 Jan Muhammad, S.I., recovery witness of the clothes of the deceased, P.W. 7 Amanullah, S.I. witness of the arrest etc. of Muhammad Arif, P.W. 8 Haji Mubarak, eye‑witness, P.W. 9 Abdul Majid, Inspector of Police, he arrested Muhammad Akram, P.W. 10 Rehmatulah, S.I., (formal) P.W. 11 Nazir Ahmad, the investigating officer, P.W. 12 Muhammad Yaqub Butt, S.H.O., he submitted the challan and P.W. 13 Sheryab Ali, S.H.O. City Quetta, he recorded the F.I.R. and handed over case papers to S.I. Nazir Ahmad for? the investigation of the case.???????????

3. In their statements recorded under sections 342 and 340(2), Cr.P.C. all of them denied the allegation levelled against them and claimed their innocence and asked for their Trial.

4. Vide judgment dated 12‑12‑1992 the Sessions Judge Ad hoc, Quetta, convicted Muhammad Arif and awarded him death sentence but acquitted Muhammad Akram and Mir Hassan of the charge.

5. Muhammad Arif challenged his conviction and sentence before the High Court of Balochistan in Criminal Appeal No. 163‑A of 1992; the Trial Court made Reference No. 8 of 1992 for confirmation of death sentence of Muhammad Arif; the State filed Acquittal Appeal No. 13 of 1993 against Muhammad Akram and Mir Hassan and the complainant also filed Criminal Revision No. 2 of 1993 against acquittal of Muhammad Akram and Mir Hassan before the High Court.'

6. The High Court of Balochistan on 28‑10‑1993 acquitted Muhammad Arif and replied murder reference in negative but accepted appeal of the State and convicted Muhammad Akram and Mir Hassan.

7. Muhammad Akram and Mir Hassan have impugned their conviction in appeal before this Court. Bahadur Khan and the State too have come in appeal by leave of this Court.

8. Mr. Sardar Muhammad Dogar, Advocate Supreme Court alongwith the A.O.R. appeared for the appellants Mir Hassan and Muhammad Akram, Sh. Khizar Hayat, A.S.C., defended Muhammad Arif. Mr. SA.M. Quadri, A.O.R., appeared for the complainant Bahadur Khan. Mr. Ejaz Yousaf, Additional Advocate‑General Balochistan, represented the State.

9. At the very outset Mr. Dogar drew our attention to the note left by Investigating Officer at the bottom of the F.I.R. and opinion of P.W. 2 Dr. Muhammad Kalim Tariq which tally with each other, he said. Then learned counsel meticulously visualized the note saying that the S.H.O. who was not an expert on the subject but has categorically mentioned therein that there were entries and equal number of exit wounds on the dead body and surprisingly the same tally with the number and nature of injuries given by the medical officer P.W. 2 Dr. Muhammad Kalim Tariq. He, therefore, argued that the F.I.R. was recorded after the post‑mortem which was held on the dead body of the' deceased in the Hospital. He reminded that post‑mortem on the dead body was conducted at 12.05 p.m. The F.I.R. as such was possible only after that time but not in any case earlier as asserted by the prosecution i.e. 11.30 a.m. He, therefore, claimed that the F.I.R. is dubious document and no reliance of whatsoever nature could be placed thereon. The argument is devoid of force for the reasons, firstly, that a police officer of status of S.H.O. mostly comes m contact with investigation of cases including murder cases. It would not be difficult for him to say that how many injuries a victim had received and what was the nature of his injuries; secondly, no question regarding this note was put to the witness in cross‑examination when he was in the witness‑box and thirdly, the objection was neither raised before the Trial Court nor before the High Court.

10. Mr. Dogar next contended that complainant, Bahadur Khan, Gul Muhammad and Haji Mubarak were neither present nor witnessed the incident. They have been introduced subsequently to entangle his clients maliciously. He contended that Bahadur Khan and Haji Mubarak were employed in the Narcotics Department whose office is at Sariab Road, a very long distance from the place of incident. They had no business to be there at the place of incident at the relevant time. Both of them thus are chance witnesses, wherefor Bahadur Khan has conceded that it was second time for him to fetch the deceased. In addition thereto, Mr. Dogar said Bahadur is an ` interested witness. Firstly being uncle of the deceased and secondly he was hostile to his clients. He canvassed that Haji Mubarak was though not related to them but was subordinate to Bahadur Khan. He too, therefore, can be termed to be an interested witness. Indeed there was no evidence to support their version. The learned counsel vehemently emphasised that no implicit reliance can be placed on their uncorroborated evidence to maintain conviction of the two appellants. The learned counsel then challenged conduct of the complainant. Firstly in the F.I.R. he named Muhammad Moosa as one of the assailants then substituted him by Muhammad Ishaque. In his cross-examination he had admitted that other eye‑witnesses were examined by police under section 161, Cr.P.C: in his presence but they did not name Muhammad Moosa at all. He further contended that if he was confident that he was truthful eye‑witness why did he file appeal against acquittal of Muhammad Arif and then why his counsel during cross‑examination to Muhammad Arif suggested that he alongwith his other companions had committed murder of Dilawar Khan. The learned counsel further contended that medical evidence belied the version of the complainant. According to him the complainant has said that the deceased was fired at from a distance of 10/15 paces whereas the injuries on the person of the deceased obviously carried blackening. The learned counsel canvassed that in presence of such glaring contradictions the evidence produced by the prosecution could not be made base for conviction of his clients. The learned counsel for the complainant stressed that there existed no enmity between the parties. Ocular version of P.W. Bahadur Khan was corroborated by Haji Mubarak and Gul Muhammad. The conviction of Muhammad Akram and Mir Hassan as such be maintained. Ch. Ejaz Yousaf, Additional Advocate‑General, Balochistan, frankly conceded that there was no corroboration to the evidence of Bahadur Khan in respect of Mir Hassan. His appeal as such may be accepted and may be acquitted of the charge. However, he abortively urged that Muhammad Arif had implicated himself in the crime to save Mir Hassan and Muhammad Akram. He as such be convicted for offence under section 201, P.P.C. He drew our attention to the case reported in 1968 SCMR 685 (Barkat v. The State): Last contention is devoid of force and repelled.

11. It may be pertinent to observe that life of Dilawar Khan was at stake as Abdullah Khan father of Muhammad Raza had proclaimed that his son Muhammad Raza was intentionally killed by Dilawar Khan. It is not uncommon in our society that frightened elder male members of such risked people look after them and keep a constant watch. Going of Bahadur Khan to fetch the deceased would not be an unnatural act of his. Bahadur Khan has explained that he was on leave on that day. However, otherwise even if he was on duty he could have very easily spared some moments to fetch his nephew. Going of his subordinate Haji Mubarak with Bahadur Khan is also not unnatural conduct. Undisputedly Haji Mubarak is in no way related to him. In the Court he has given convincing narration of the incident. Had he acted under the influence of the complainant he could have very easily said he had seen the committing of the murder himself. Behaving independent witness he has disclosed what he actually saw and heard. He has corroborated evidence of complainant Bahadur Khan in respect of Muhammad Akram only. Did not utter a word against Mir Hassan.

12. Name of Gul Muhammad neither appears in F.I.R. nor the complainant had disclosed it in his deposition before the Trial Court. Besides, he has said nothing material which may corroborate the evidence of the complainant. No weight as such could be attached to his evidence and is totally ignorable.

13. We have had advantage to go through the judgment of the High Court, where the Division Bench has properly and correctly evaluated evidence of Bahadur Khan and Haji Mubarak. Their assessment cannot be said to be defective in respect of Muhammad Akram and which may call interference of this Court in appeal.

14. Muhammad Arif has been introduced late. There was no reason for him to appear and claim that he committed the murder of Dilawar Khan. He resiled from his statement later in trial. The High Court has correctly acquitted him of the charge. He seems to have dramatized to create dent in case of prosecution to help Muhammad Akram and Mir Hassan, his cousins. Muhammad Akram is son of Levies Rasaldar. Muhammad Akram is his successor in the service. He now is Defedar of Levies which is indeed a lucrative post in levies service.

15. In result of our observations as discussed hereinabove we dismiss the appeal of Muhammad Akram and maintain his conviction and sentence. The appeal of Mir Hassan is accepted. His conviction and sentence recorded by the High Court of Balochistan are set aside and he is acquitted of the charge. He be released forthwith if not required in any other case. Consequently the appeals filed by Bahadur Khan and the, State fail, which are dismissed accordingly. These are the reasoning of our short order of even date. N.H.Q./M‑3168/S ????????????????????????????????????????????????????????????????? Order accordingly.