2021 PLP 117 (YLRN)

ROZI KHAN BARRECH, J.

The appellants Naqeebullah son of Muhammad Qasim in Criminal Appeal No. 05 of 2017 and Ghulam Abbas son of Muhammad Ibrahim in Criminal Appeal No. 80 of 2017 having been involved in case FIR No.530/2013 dated 10.08.2013 registered under sections 302, 109, 204, 201 and 187, P.P.C. at Police Station Jinnah Town Quetta were tried by the learned Sessions Judge-VI, Quetta ("trial court") and on completion thereof by means of the judgment dated 17.03.2017 ("impugned judgment") passed in Sessions Case No.55/2016, the appellants were convicted and sentenced in the following terms: "The accused Ghulam Abbas is convicted under section 302(b), P.P.C. and sentenced to suffer life imprisonment as Ta'zir for committing murder of deceased Amir Muhammad. The accused Ghulam Abbas is further ordered to pay compensation amounting to Rs.200,000/- (Rupees two Hundred Thousand) to the legal heirs of deceased Amir Muhammad as compensation by section 544-A, Cr.P.C. and in default thereof he shall further suffer for Six (06) months. The benefit of section 382-B, Cr.P.C. is also given to the accused. Since the accused Ghulam Abbas son of Muhammad Ibrahim is in custody, shall be shifted to Jail to serve out his sentences. While charge against accused Naqeebullah under sections 302, 109, P.P.C. is not proved whereas provision of sections 187, 204, P.P.C. are also not attracted in the facts and circumstances of the case, as such both these offences are deleted by exercising powers conferred upon this court under section 227, Cr.P.C. however, charge under section 201, P.P.C. has completely been proved against the accused Naqeebullah Tareen son of Muhammad Qasim as such he is convicted under section 201, P.P.C. and sentenced to serve imprisonment of five (05) years R.I. with fine of Rs.50,000/- (Rupees Fifty Thousand Only) and in default of payment of fine to suffer further S.I. of six (06) months." Aggrieved from the impugned judgment the appellants Ghulam Abbas and Naqeebullah have assailed their conviction and sentence through Criminal Appeals Nos. 05 and 80 of 2017, while the complainant Muhammad Awais son of Ameer Muhammad has filed Criminal Revision Petitions bearing Nos. 07 and 08 of 2017 for enhancement of the conviction awarded to the appellants by the trial court. Since all the cases are arising out of one and the same judgment of the trial court, therefore same are being disposed of through this single judgment.

2. The prosecution story as disclosed in the FIR (Ex.P/9-A) recorded on the statement of complainant (Ex.P/1-A) Muhammad Awais (PW-1) is that he and his father Ameer Muhammad were doing the job of supervisor in Hot and Chili Hotel. On 10.08.2013 at 6:15 pm, the guard of the owner of the hotel namely Ghulam Abbas came to him on the counter and asked for a cold drink ( ). In response the complainant asked him to bring receipt, but he started arguing with him and thereafter went at the counter of the owner of the hotel namely Naqeebullah where the complainant's father was standing. The accused Ghulam Abbas abused him and his father and threw his cape, bulleted his Kalashnikov and fired upon his father, which hit the complainant's father on his abdomen, who fell down and after firing the accused Ghulam Abbas threw his Kalashnikov and ran towards outside but he was apprehended by the waiters and other people. In the meanwhile, the police also reached the spot and owner of the hotel, namely Naqeebullah, took away the Kalashnikov from there. The complainant shifted his father to the hospital with the help of the other people. where his father succumbed the injuries. Hence the crime report.

3. After completion of the usual investigation, the challan was prepared and submitted before the trial court wherein the accused were formally charge-sheeted to which they did not plead guilty and claimed trial. The prosecution in order to prove its case produced nine witnesses in all. After the closure of the prosecution witnesses, the statements of the appellants were recorded under section 342, Cr.P.C, wherein they denied the prosecution evidence and professed innocence. The appellants record their statements on oath as envisaged under section 340(2), Cr.P.C. and the appellant Naqeebullah produced one witness in his defense. On conclusion of the trial, the trial court after hearing arguments from both the parties convicted and sentenced the appellants in the aforesaid terms. Where-after the titled criminal appeals along with revision petitions have been filed.

4. Arguments advanced from both sides have been heard. We have also minutely gone through the record available on file with the able assistance of learned counsel for the parties.

5. In the case in hand the occurrence took place on 10.08.2013 at 6:15 p.m., and the Marasla was written on the oral report of the complainant/PW-1 Muhammad Awais, son of Ameer Muhammad at civil hospital Quetta on the same date at 7:00 pm. The FIR was lodged at 7:30 pm promptly without any delay, and the accused/appellants were specifically nominated with the definite roles assigned to each of them. The allegations levelled against the appellant Ghulam Abbas is that he made firing upon the deceased Ameer Muhammad with Kalashnikov, who received injuries and later on succumbed to the injuries and the allegation levelled against the appellant Naqeebullah the owner of Hot and Chili hotel is that appellant Ghulam Abbas was his guard and after the incident, he took away the crime weapon from there and knowingly caused disappearance of the weapon of crime, i.e. Kalashnikov. PW-1 Muhammad Awais complainant of the case and PW-2 Muhammad Afzal are claiming to be the eye-witnesses of the occurrence. Both of them stated in their statements that on 10.08.2013 at 6:15 p.m. the accused Ghulam Abbas made firing upon the deceased Ameer Muhammad with Kalashnikov who received injuries and later on succumbed to the injuries and accused Naqeebullah who is the owner of the said hotel took the Kalashnikov from the place of occurrence.

6. The complainant narrated the whole story with regard to the occurrence and has correctly stated time, date and manner in which the occurrence has taken place. PW-1 has correctly identified the accused before the court. Likewise, PW-2 Muhammad Afzal is the other eye-witness of the occurrence. Both the witnesses attributed the role of firing to the appellant Glulam Abbas. They gave a consistent and straightforward ocular account of the occurrence. Despite conducting exhaustive and lengthy cross-examination, nothing was brought on record, which may significantly demonstrate that the above witnesses' account is false and their presence at the scene of the crime was doubtful and distrustful. The presence of the witnesses on the spot was also proved. The name of PW-2 is also mentioned in the FIR which was promptly lodged. At the same time, the investigation officer has recorded the statement of PW-2 soon-after the occurrence. Both the PWs shifted the dead body of the deceased Ameer Muhammad to the hospital. PW-1 was doing the job in the said hotel (place of occurrence), and PW-2 Muhammad Afzal is the brother of the deceased, who explained his presence at the place of occurrence that he went to his sister's house and there-after came to the hotel where his brother was doing the job for taking keys of the house. They gave a plausible explanation with regard to their presence at the spot at the relevant time. The appellants did not point out any enmity of the witnesses with them. Even otherwise, the witnesses had no reason or motive to implicate them falsely. The appellant Ghulam Abbas is single accused, who made firing upon the deceased Ameer Muhammad and in such like cases, substitution is a rare phenomenon.

7. So far as the contention of learned counsel for the appellants that only interested witnesses were produced by the prosecution and the prosecution case is lacking independent corroboration and the witnesses cited in the challan were not produced before the trial court is concerned, suffice to state here that mere relationship of the witnesses with the deceased is no ground to discard their testimony if their evidence is found entirely independent and truthful, therefore, their testimony without looking for any other corroborative evidence, would alone be sufficient to establish the charge. The evidence of related witnesses who are not found inimical and are confidence-inspiring would hardly need any corroboration. PW-1/complainant is the son of the deceased and PW-2 Muhammad Afzal is the brother of the deceased. Being close relatives of the deceased, the above witnesses were subjected to cross-examination, but nothing advantageous was brought rendering inconsistent to the case of the appellants, who were implicated by the above PWs. It is stated earlier that no serious enmity whatsoever was alleged against them besides that being real son and brother of the deceased the question of substitution of the real culprits with that of appellants does not arise, which is otherwise a rare phenomenon. Reliance in this regard may be placed on the case of Allah Ditta v. The State PLD 2002 SC 52.

8. Admittedly the other private witnesses Muhabbat Ali, Fareed, Syed Muhammad, Essa Khan and Muhammad Shahid were shown in the calendar of challan as witnesses and were not produced before the trial court. The trial court tried to procure the evidence of the said witnesses, but on 09.10.2015 the investigation officer appeared before the court and got recorded his statement as CW-1 wherein he produced un-served summons of the witnesses Muhammad Umer, Fareed, Muhammad Shahid and Muhabbat Ali with the contention that there is no chance to trace out the said witnesses. From the statement of the investigation officer, i.e. CW-1 it appears that the witnesses were mainly residents of Punjab and Karachi and they were doing work in the place of occurrence and had left their jobs and went from there. In the above circumstances, the said witnesses were not produced by the prosecution. It has consistently been held by the superior courts that it is the quality of the evidence which is to be seen and not the quantity, and further conviction can be based on the testimony of solitary eye-witness if its evidence is confidence inspiring and rings true.

9. It may be observed that medical evidence is in complete harmony with the ocular testimony of the complainant/PW-1 and PW-2 Muhammad Afzal. No conflict could be pointed out to create a dent in the prosecution case. The medical evidence of the deceased was produced by PW-5 Dr. Ghulam Sarwar Hashmi, Medico-Legal Officer. On 10.08.2013 he examined the dead body of the deceased and found the following injuries:

1. Bullet entry wound 1.5 x 0.5 cm circular left renal area.

2. No exit seen. He issued the medical certificate Ex.P/5-A, according to which the death of the deceased Ameer Muhammad was due to firearm which injury of vital organ excessive bleeding and shock. The testimony of the above witness has also been corroborated by the recovery of the blood stained garments of the deceased, recovery of bullet empties of Kalashnikov. The said recovery has duly been proved through recovery witness, and nothing adverse could be achieved despite cross-examination. It is stated earlier that the medical evidence produced by the prosecution also supported and corroborated the testimony of the eye-witnesses and no contradiction at all could be pointed out by the defense.

10. We have also perused the exhaustive testimonies of the accused/ appellants and defense witness. The accused Ghulam Abbas got recorded his statement on oath as envisaged under section 340(2), Cr.P.C. He stated that on the day of occurrence, he along with his brother came to Quetta to meet his relative. In the evening they were sitting in Caf Balochistan near Hot and Chili Hotel for tea when suddenly two groups started fighting. The accused went to intervene and received a stick blow and fell down and became unconscious, and the groups after making firing went away. Thereafter the police reached the spot, and he was shifted to the hospital. No corroborative piece of evidence was produced by the accused to establish that he was falsely implicated in the instant case by the witnesses despite the fact that there was no enmity between the accused and the complainant. It has also come on record that the prosecution also produced independent witness, i.e. PW-8 Jaffar Agha who is also a partner in the hotel Hot and Chili with the accused Naqeebullah. He stated that the accused Ghulam Abbas was a guard of the accused Naqeebullah. It is established from the record that the accused Ghulam Abbas was a guard of the accused Naqeebullah in the said hotel and he being armed with Kalashnikov fired upon the deceased Ameer Muhammad, who received injuries and later on succumbed to the injuries.

11. So far as the plea of the accused Naqeebullah is concerned who also got recorded his statement on oath as envisaged under section 340(2), Cr.P.C. before the trial court. He stated that on 30.08.2013 he was present in his hotel Hot and Chili. Suddenly he heard the noise of firing and came out of the basement and saw people gathered on the spot where Ameer Muhammad was lying in a pool of blood. He called the SHO Police Station Jinnah Town Murad and informed him about the incident. Since my vehicle was stuck due to the crowd gathered at the spot; therefore he went toward the road and stopped Baqi Niaz's car, in which they shifted Ameer Muhammad to the hospital, where they came to know that Ameer Muhammad had expired. He also stated in his statement that he has no concern with the accused Ghulam Abbas nor he knew him. He was nominated in the FIR because he is a white collared citizen, and that Muhammad Awais came to him and demanded Rs. 10,00,000/- from him for excluding his name from the FIR. PW-1 and PW-2 are eye-witnesses who stated in their statements that the accused Ghulam Abbas was a guard with accused Naqeebullah and after the incident, the accused took the Kalashnikov away with which the accused Ghulam Abbas had fired upon the deceased. PW-8 Jaffar Agha, who is an independent witness and partner of the accused Naqeebullah in the hotel, confirmed in his statement that the guard of the accused Naqeebullah made firing upon the deceased. Learned counsel for the accused Naqeebullah did not dispute that PW-8 Jaffar Agha is his partner.

12. The defense version has been kept in juxtaposition to that of prosecution evidence. The plea of the appellants is hardly believable and otherwise could not be substantiated without producing any cogent and concrete evidence. It must be kept in view that mere a few suggestions do not mean that whatever has been suggested was true because suggestion cannot be equated to that of "proof".

13. We have no hesitation to hold that the prosecution has been successful to prove its case against the appellant Ghulam Abbas beyond reasonable doubt and concluding so, it has been observed by us that specific role to the accused/ appellant Ghulam Abbas was attributed that he made a fire upon the deceased Ameer Muhammad who received injuries and later on succumbed to the injuries.

14. So far as the role of the accused Naqeebullah is concerned, he was charged with the offence under section 201, P.P.C. The trial court held that the accused/appellant Naqeebullah committed the offence as provided under section 201, P.P.C. Section 201 of the P.P.C. reads: "

201. Causing disappearance of evidence of offence, or giving false information to screen offender: Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false." According to the above provision for constituting the offence under section 201, P.P.C., three essential ingredients require to be fulfilled: firstly, the accused must know or should have reason to believe that an offence has taken place; secondly, the accused by his action or in-action prevents evidence of the commission of the offence to be concealed; and thirdly, the action or inaction of the accused must be with the intention to prevent the actual perpetrator of the offence from being punished or, with the same intention of saving the actual perpetrator from punishment, renders information regarding the offence knowing or believing the same to be false.

15. Now, the question arises that whether the prosecution has produced sufficient evidence to convict the accused Naqeebullah rightly. In order to effectively address this issue, we would require to focus on the statements of PW-1 complainant, PW-2 Muhammad Awais and PW-8 Jaffar Agha. PW-1 and PW-2 are eye-witnesses, and they stated in their statements that the accused Ghulam Abbas was a guard of the accused Naqeebullah and he fired upon the deceased Ameer Muhammad and threw the Kalashnikov, and the accused Naqeebullah who was present at the place of occurrence took the Kalashnikov and went away. The statement of the above witnesses was corroborated to the extent that the accused Ghulam Abbas was a guard of the co-accused Naqeebullah with the statement of PW-8 Jaffar Agha, who stated in his statement before the trial court that on 08.10.2013, he received information that the guard of the accused Naqeebullah has made firing upon the deceased Ameer Muhammad who received injuries, upon which he called the concerned SHO who reached the place of occurrence within ten minutes, however, he did not witness the occurrence himself. During cross-examination, he stated that he is a partner of the accused Naqeebullah in the said hotel. From the statement of the above witness, it is established that the accused Ghulam Abbas was a guard with co-accused Naqeebullah and after the occurrence, the accused Naqeebullah took the Kalashnikov from the place of occurrence and fled. The said Kalashnikov which was used in the commission of the crime by the accused Ghulam Abbas was a strong piece of evidence in the case, but the accused Naqeebullah caused disappearance of the evidence, and from the statement of the above witnesses it is very much clear and sufficient to establish the fact that the accused Naqeebullah had knowingly caused disappearance of the weapon of offence, i.e. Kalashnikov and he had facilitated and tried to save the principal accused from legal punishment by doing so. Guidance is sought from the judgment of the Hon'ble Supreme Court in the case titled as Raja Khurram Ali Khan and two others v. Tayyaba Bibi and another (PLD 2020 SC 146). 16 So far as the Revision Petition No. 08 of 2017 for enhancement of the sentenced recorded by the trial court against the appellant Ghulam Abbas is concerned, while going through the record available on the file we have noticed that in the crime report and in the court statement of the witnesses the role of a single shot fired upon the deceased has been ascribed to the appellant and the same was not repeated. It is suffice to observe here that the manner in which the occurrence took place does not appear to be the premeditated circumstance. The occurrence is a result of a petty dispute over a cold drink bottle, and this factor constitutes mitigating circumstance in favour of the accused Ghulam Abbas. The reasons rendered by the trial court for not awarding capital punishment of death was very much convincing, plausible and finding of the trial court in this regard being unexceptional is maintained. Pursuant to the above, we have come to the conclusion that the prosecution established its case beyond the shadow of doubt and conviction and sentenced recorded by the trial court is based upon a correct appreciation of evidence, which does not call for any interference by this court; therefore, the judgment of conviction and sentence passed against the appellant Ghulam Abbas and Naqeebullah are maintained and Criminal Appeals Nos. 05 and 80 of 2017 are dismissed accordingly. The Criminal Revision Petitions Nos. 07 and 08 of 2017 are also hereby dismissed. The appellant/accuscd Naqeeb-ullah is on bail, who is not in attendance. Office to issue perpetual warrants of the appellant/accused Naqeebullah son of Muhammad Qasim. JK/51/Bal. Appeals/Revisions dismissed.