1994 P Cr (PLP)

AMIR-UL-MULK MENGAL, J.

Learned Additional Sessions Judge, Usta Muhammad tried appellants Ali Nawaz son of Muhammad Yakub Sohba son of Muhammad Yakub and Abdullah son of Muhammad Hayat for an offence under section 302, Qisas and Diyat Ordinance, 1990 read with section 34, P.P.C. in Sessions Case No.13 of 1991 and found them guilty and convicted them with the following sentence vide judgment, dated 13-10-1992:-- "I convict the accused facing trial under section 302(b), P.P.C. (as amended) read, with section 34, P.P.C. and sentence them to imprisonment for life. The accused facing trial are further ordered under section 544-A, Cr.P.C. to pay Rs.5,000 (Five thousand) each as compensation to the heirs of .the deceased. The accused Sohba, Ali Nawaz and Abdulleh present in Court in custody be detained in Central Jail, Mach to serve out the sentence. The period spent by them as under-trial prisoners be counted under section 382-B, Cr.P.C. towards their said sentence. " Additionally accused Abdullah was found guilty under section 13-E, Arms Ordinance, 1965 and was convicted and sentenced to suffer 3 years' R.I. Feeling aggrieved from the aforementioned judgment and sentence Criminal Appeal No. 140 of 1992 and Criminal Appeal No. 141 of 1992 have been filed by the accused persons. Since both the appeals arise out of common facts and law, therefore, we are inclined to dispose of the same vide this common judgment. Brief facts for filing of these appeals are that on 6-2-1991 at about 11-55 a.m. one Ghulam Qadir lodged a report with Police Station Usta Muhammad stating therein that on the said day, after attending the Court of Additional Sessions Judge, Usta Muhammad, he alongwith his brother Din Muhammad and cousin Naseer were proceeding towards Usta Muhammad Bus Stand. As soon as they reached near Jamali Petrol Pump Usta Muhammad accused Ali Nawaz armed with a spade, Sohba armed with a revolver and accused Abdullah armed with a pistol came and threatened them that they would not be spared. Ali Nawaz attacked with spade while accused Sohba and Abdullah started firing with their weapons on Din Muhammad (deceased) on account of which he sustained injuries and died on the spot. In pursuance of the said report, F. I. R. No. l l of 1991 (Exh.P/5-A) was registered and Shabbir Ahmad, Sub-Inspector conducted investigation. He proceeded on the spot and saw the accused persons running after committing the murder, of deceased. He alongwith other police officials chased and arrested accused Sohba and recovered revolver alongwith its licence from his possession. Since the remaining accused were still running, therefore, accused Sohba was handed over to police officials on the spot and Shabbir Ahmad himself taking some other police personnel chased the remaining accused persons Ali Nawaz and Abdullah. Both of them were arrested near Goth Khundshah and an unlicensed pistol of .32 bore (article 16) was recovered from accused Abdullah vide recovery memo. Exh.P.4/A. So also a blood-stained spade (Article 17) was recovered from possession of Ali Nawaz vide recovery memo. Exh.P.4/B. The Investigating Officer prepared parcels and came back to the place of incident and prepared recovery memo. Exh.P/2-A of Revolver .2 bore (Article No.l). He then prepared site plan (Exh.P/2-B). Besides this six empties of .32 bore pistol were recovered from the place of incident vide recovery memo. -Exh.P/2-D. One empty of .32 bore pistol was also recovered He further recovered 3 bullet leads of .32 bore and prepared the parcels and sent the dead body to hospital for post mortem after conducting other formal investigation. All the three appellants were challaned under section 302, Qisas and Diyat Ordinance read with section 34, P.P.C. for trial. At the trial prosecutior examined six witnesses to support the charge. P.W.1 is Dr. Ejaz Ali (Medical Officer. Civil Hospital Usta Muhammad), P.W.2 is Attor Khan who arrested Sohba and is a recovery witness, P.W.3 Abdul Rehman, P,WA Naik Muhammad, P.W.5 Shabbir Ahmad and P.W.6 Malik Muhammad Ali. The appellants led no defence nor opted for recording their statements under section 340(2), Cr.P.C. Learned trial Judge after assessing the evidence on record found the appellants guilty and passed the sentence as mentioned in the preceding para. Learned trial Judge settled the following points for determination:-- (1) Whether deceased Din Muhammad met with violent death? (2) Whether the accused facing trial in furtherance of their common intention committed the murder by intentionally causing the death of deceased Din Muhammad by inflicting injuries with revolver, pistol and spade (Balcha)? (3) What offence, if any, committed by the accused? Heard Mr. Azizullah Memon for the appellants and learned Advocate General, Balochistan for the State. As far as the question that Din Muhammad received fatal injuries and met with violent death, the same was not seriously contested. However, the main question is whether the present appellants are responsible for the commission of offence of murder with common intention. The irqportant aspect of the case is that no private witness was produced by the prosecution to substantiate the charge against the appellants. Of course, according to the prosecution one Ghulam Qadir and Nasir Muhammad were nominated in the list of prosecution witnesses but they could not be produced, as according to the report of process-server Muhammad Sadiq said witnesses had migrated to an unknown place. We are, therefore, left to assess the testimony of the police witnesses. The learned trial Judge has believed their testimony. Although in para. 22 of the judgment he observed as under :-- "Though there are some minor and slight discrepancies in the evidence of the prosecution relating to place of preparation of recovery memos and distances but they cannot be considered fatal to the case of prosecution which has independently been established by medical as Well strong circumstantial evidence getting support from strong motive for commission of the offence ... " We are inclined to deal with the contradictions at a later stage as we intend to reproduce the gist of the prosecution evidence first. P.W.1 Dr. Ejaz Ali conducted the post-mortem of the dead body of deceased Din Muhammad and opined that his death was result of injuries to the vital organs i.e. Brain, Left Lung, Lever, excessive haemorrhage and shock which were produced by the abovementioned injuries and the same were sufficient to cause death. We have already pointed out that deceased Din Muhammad met an unnatural and violent death. P.W.2 Attor Khan a police constable is the main witness regarding arrest of accused Sohba Khan. According to this witness on the day of incident S.H.O. was formed about murder of a man. They proceeded to the place of occurrence and saw accused Sohba Khan running away towards east. He was caught by the witness and a .32 bore revolver was recovered from him. He produced the revolver (Article 1) in the Court. He is also witness to the recoveries such as blood-stained earth empties, bullet lead etc. However, in his cross-examination he stated that they went to the place of occurrence by a vehicle. He further stated in cross examination that many private persons were present and saw them running behind the accused. P.W.3 Abdur Rehman, Head Constable was a formal witness of the inventory regarding blood-stained shirt, trouser and Bunian (vest) of deceased Din Muhammad. P.W.4 Nek Muhammad, Head Constable deposed that he was posted at Police Station Usta Muhammad. On the eventful day, he alongwith Malik Muhammad Ali Police Inspector, Shabbir Ahmad, Sub-Inspector an(' other Police personnel was present at the police station. They were informed that a person was killed at Jacobabad Bus Stand, Usta Muhammad. The police party headed by Malik Muhammad Ali reached to the place of occurrence and saw a dead body lying over there. Malik Muhammad Ali, Inspector, prepared the necessary papers. Thereafter they went to Goth Kundan Shah which is at a distance of one kilometre from Usta Muhammad. They saw two persons going on foot who were stopped. The said persons disclosed their names as Abdullah and Ali Nawaz, who were in possession of a pistol and a blood-stained spade respectively. They told the police that they murdered Dinoo. Accused persons were taken into custody alongwith weapons and inventory prepared. In the cross-examination the witness stated that it was 9 a.m. when they received the information. P.W.5 Shabbir Ahmad, Sub-Inspector conducted the investigation. According to him he heard reports of firing while he was in the police station. He alongwith other police officials went to the place of occurrence and saw the dead body of the deceased. He also stated that he saw accused persons running away. With the help of police officials he arrested accused Sohba and recovered a revolver alongwith its licence from his possession. The accused were within their sight. They were chased and caught hold of near Goth Kundan Shah. Malik Muhammad Ali registered the case against the accused persons vide F.I.R. Exh.P/5-1. Shabbir Ahmad recovered unlicensed pistol .32 bore from accused Abdullah vide recovery memo. Exh.P/4-A. He conducted and completed the investigation. According to him in their statements under section 161, Cr.P.C. accused Ali Nawaz. Sohba and Abdullah stated that wife of Sohba Mst. Rani had been kidnapped by deceased Din Muhammad, therefore, Mst. Rani was declared Siahkar with deceased Din Muhammad and they committed his murder. In the cross-examination the witness stated that all the police officials reached together to the place of occurrence. The said witness sent the crime weapons and empties to the Ballistic Expert whose report was produced by him as Exh.P/5-E. According to which crime bullets were fired from Revolver No.7200. Challan was, however, submitted by Malik Muhammad Ali, S.H.O. This is the sum-total of evidence brought by prosecution against the accused persons. There is no cavil to the proposition that police witnesses are as good witnesses as any other private witness, provided there is no mala fide on their p part or that there is no material contradiction in their statements. We, therefore, proceed to see whether the statements of police officials are consistent, confidence inspiring and trustworthy or the same suffer from intrinsic contradictions, therefore, cannot be relied. We start from the F.I.R. Exh.P/5-A One Ghulam Qadir lodged F.I.R. No.11 of 1991 on 6-2-1991 at 11-55 a.m. Allegations made therein were that a case of abduction was pending for last two years against the first informant, deceased Din Muhammad and Naseer Muhammad in the Court of Additional Sessions Judge Usta Muhammad. Accused persons had come to attend the hearing and were proceeding towards home when near Bus Adda Usta Muhammad at about 11-30 a.m. they saw Ali Nawaz armed with a spade, Sohba armed with revolver and Abdullah armed with a pistol near Jamali Petrol Pump. All the accused persons gave them alarm by saying that they would not be spared. Ali Nawaz attacked with spade, Sohba and Abdullah started firing with the pistol and revolver at Din Muhammad as a result of which Din Muhammad sustained injuries and fell down and soon succumbed to the injuries. This report was lodged with Usta Muhammad Police Station at I 1-55 a.m. by one Ghulam Qadir the brother of the deceased. From perusal of the material brought on record it appears that Sohba was arrested first near from the place of incident. Since the incident had taken place in the broad daylight just near the Police Station Usta Muhammad where according to testimony of P.W.5 Shabbir Ahmad and others the firing reports were heard by them while they were present in the police station and Shabbir Ahmad alongwith police party including P.W.2 Attor Khan immediately rushed to the spot and, saw accused Sohba running from the place of occurrence he was chased and arrested and a .32 bore revolver (Article 1) was recovered from him. The depositions of P.W.2 Attor Khan and P.W.5 Shabbir Ahmad are consistent on this point. However learned defence counsel vehemently urged that accused Sohba was admittedly arrested from a public place in presence of private persons as deposed by Additional S.H.O. P.W.5. He, therefore, strenuously urged that non-inclusion of a private person as a recovery witness of the revolver from the possession of accused Sohba was illegal. Learned counsel in order to substantiate his argument read out the deposition from cross-examination. There is no cavil that the P.W. has candidly admitted that private persons were present but none of them was called to become a recovery witness. Learned counsel therefore while relying on 1986 S C M R 462 urged that testimony of P.W.2 and P.W.5 may not be relied. It may be observed that facts of each case generally differ and the-, Courts have to see the over all effect of the circumstances and then to decide whether a particular testimony is to be rejected or not. The peculiar circumstances in this case on this point are that according to P.W.5 Sohba was arrested after being chased and handed over to the police officials accompanying him and he went further to arrest the remaining accused persons. Sohba was not the only accused. Thus there was no time left with the Additional S.H.O. to complete the formalities strictly by including private witnesses when he was under an obligation to arrest the absconding accused persons who after commission of the offence had run away. In such circumstances non-inclusion of E private witnesses to our humble and considered view would not be fatal to the testimony of the police witnesses. Things would have been different if the act of murder had been committed only by Sohba. Therefore we do not associate ourselves with the contention as urged by counsel for the defence. Although neither P.W.2 nor P.W.5 was an eye-witness but their testimony provides strong circumstantial evidence against accused Sohba. They were sitting in the police station at a distance of 1-1/2 furlongs and heard the gunshot reports and rushed to the spot. They saw Sohba running and he was chased and arrested. Article 1 a revolver of .32 bore was recovered from him. Empties were also recovered from the place of occurrence. The crime weapon alongwith empties were sent to the Ballistic Expert whose report was produced before the trial Court with the following opinion:-- "(1) The five .32 bore crime empties now marked as C. I to C.5 were fired from abovementioned .32 bore revolver No.7200 now butt signed. (2) Three .32 crime bullets were fired from the abovementioned .32 bore Revolver No.7200 " The opinion of the Ballistic Expert provides another important piece of evidence against appellant Sohba and it fully corroborates testimony of P.W.2 Attor Khan and P W.5 Shabbir Ahmad. Another important piece of evidence is the motive to kill the deceased. We fully agree with the argument of defence counsel that no reliance can be placed on the statement of accused Sohba recorded under section 161, Cr.P.C. which prima facie is inadmissible in evidence and in which accused Sohba stated that he alongwith co-accused committed murder of deceased Din Muhammad on account of abduction of his wife Mst. Rani by the deceased. But still it has come in the F.I.R. that an abduction case was pending against deceased Din Muhammad in the Court of Additional Sessions Judge, Usta Muhammad. They were proceeding to their home after attending the Court in connection with the said abduction case. This evidence, however, is not only admissible but was never challenged by the defence in cross-examination. Furthermore no defence was led to prove otherwise or to controvert contents of F.I.R. to the extent of abduction. case being pending against the deceased and his companions. Thus, accused Sohba was directly effected as his wife had been allegedly abducted by Din Muhammad. The prosecution has proved the motive to kill deceased Din Muhammad. Keeping the aforementioned evidence in view the inescapable conclusion would be that accused Sohba was responsible for the murder of E deceased Din Muhammad. We, therefore, maintain his conviction and sentence as passed by learned trial Court. Remaining two appellants namely Ali Nawaz and Abdullah were arrested near Goth Khund Shah. According to P.W.5 Shabbir Ahmad and. P.W.6 Mallik Muhammad Ali accused Abdullah and Ali Nawaz were arrested near Goth Khund Shah and a pistol was recovered from Abduliah and a blood-stained spade was recovered from Ali Nawaz. Both the crime weapons were sent for examination to the Ballistic Expert and Chemical Analyser. The Ballistic Expert, besides the Revolver No.7200 already mentioned examined .32 bore pistol Dassi-made but gave no definite opinion due to lack of identifiable data. The only empty allegedly fired by the pistol thus did not match with the pistol recovered from Abdullah. However, the chemical analyser concluded that spade (Balcha) was stained with human blood Group A+. At the cost of repetition it may be stated that there are three witnesses who deposed about the arrest and recovery of crime weapon from two appellants and namely Ali Nawaz and Abdullah and those are PWA Naik Muhammad, Head Constable, P.W.5 Shabbir Ahmad and P.W.6 Malik Muhammad Ali. It is, therefore, to be seen whether conviction of the aforementioned two appellants can be maintained on the testimony of the said three witnesses. P.W.4 Naik Muhammad deposed that after preparing the necessary papers on the place of occurrence for half an hour he alongwith Malik Muhammad Ali and other police officials went to Goth Khund Shah which is at a distance of I kilometre from Usta Muhammad. There they saw two persons who were going on foot. On their asking, they stopped and told their names as Abdullah and Ali Nawaz who were in possession of a pistol and blood-stained spade respectively. At that time accused persons told that they had murdered Din Muhammad. P.W.5 Shabbir Ahmad the star witness of the prosecution stated that after arresting accused Sohba he was handed over to police officials who had come from Thana and he himself alongwith some other police officials chased the remaining accused persons who were running ahead of them. The accused persons were within their sight. They caught hold of the accused persons near Goth Khund Shah, and effected the recoveries as mentioned hereinabove. P.W.6 Malik Muhammad Ali stated that after registering the F.I.R. he alongwith police party went after the accused to Goth Khund Shah. A police party was also chasing the accused Ali Nawaz and Abdullah. They were arrested near Goth Khund Shah. A pistol .32 bore was recovered from accused Abdullah and a blood-stained spade was recovered from Ali Nawaz. The investigation was handed over to Shabbir Ahmad Sub-Inspector. In cross-examination he further stated that he arrested accused Ali Nawaz and Abdullah near Goth Khund Shah. Now important questions arise as to the credibility of testimony of P.W. Naik Muhammad and P.W. Malik Muhammad Ali. P.W. Naik Muhammad stated that he and Malik Muhammad Ali remained busy in preparing necessary papers at the place of occurrence for half an hour. Obviously the accused persons could not wait for them alongwith the crime weapons in their possession so that they may be chased and arrested. Another important aspect is that as per F.I.R. the police party started from police station on 7-2-1991 whereas the occurrence had taken place on 6-2-1991. It is also important to note that according to PWA the persons present on the place of occurrence told them that accused had gone towards Goth Khund Shah. In these circumstances it is not believable that Muhammad Ali and Naik Muhammad chased and arrested two accused persons. However, as stated by Muhammad Ali that another police party was already chasing the appellants Ali Nawaz and Abdullah. There, however, may be a presumption that it was P.W. Shabbir Ahmad who just after hearing the gunshot reports immediately went to the place of occurrence, arrested accused Sohba and then chased the remaining two appellants. PWA and P.W.6 had gone only after when the accused were already arrested. We are thus left with the sole statement of P.W.5 Shabbir Ahmad. According to his statement both the appellants were going ahead of them within their sight. After arresting Sohba he alongwith police party chased the accused persons and arrested them near Goth Khund Shah. However, according to Malik Muhammad.Ali after reaching the place of occurrence he left Shabbir Ahmad S.I. at the place of occurrence and he himself chased the accused. This is a material contradiction because in that case Shabbir Ahmad remained on the scene of occurrence and Malik Muhammad also remained for f half an hour on the spot according to PWA. Thus, it cannot be said that two appellants were the same persons who committed the offence and ran away. Additionally as far as recovery of pistol from Abdullah is concerned, no evidence has come on record that any firing was made from the said pistol at the deceased particularly so when it was examined by the Ballistic Expert and he did not give any positive opinion regarding use of the weapon in commission of the offence. Furthermore, the recovery itself is doubtful in view of contradictory statement of P.W. Naik Muhammad and Malik Muhammad Ali on the one hand and P.W. Shabbir Ahmad on the other hand. As far as recovery of spade is concerned it does not appeal to reason that accused Ali Nawaz after committing murder of deceased took alongwith him the spade throughout for about one 1 kilometre particularly when he was being chased by the police party. It is not natural that in the circumstances he did not try to throw the spade but continued to carry it till such time that police arrested him. For above reasons we are of the view that prosecution failed to prove the case against the present two appellants namely Abdullah and Ali Nawaz beyond reasonable doubts. Thus, giving benefit of doubt to appellant Ali Nawaz. ,J and Abdullah we hereby set aside their conviction and sentence for an offence under section 302/34, P.P.C. as recorded by learned Additional Sessions Judge, Usta Muhammad. So also the recovery of pistol being doubtful we allow the appeal of Abdullah and set aside his conviction recorded under section 13-E of Arms Ordinance. The upshot of the aforementioned discussion is that we reject the appeal filed by Sohba and maintain his conviction and sentence as recorded by learned Additional Sessions Judge, Usta Muhammad. However, giving benefit of doubt to remaining two appellants namely Ali Nawaz son of Muhammad Yaqoob and Abdullah son of Muhammad Hayat, we set aside their conviction. Resultantly appellants Ali Nawaz and Abdullah Shah be released forthwith if not required in any other case. N.H.Q./479/Q Order accordingly.