2023 PLP 8 (YLRN)

ABDUL HAMEED BALOCH, J.

Through this common judgment we intend to dispose of Criminal Appeal No. 218 of 2020, Murder Reference No. 07 of 2020 (arising out of FIR No. 21/2017) and Criminal Acquittal Appeal No. 277 of 2020 (arising out of FIR No. 22 of 2017).

2. The prosecution case as gleaned from the Fard-e-Biyan dated 16th December, 2017 (Ex: P/1-A) submitted by PW-1 Muhammad Ghazali son of Haji Muhammad Khan, Caste Dumar, resident of Poi Tehsil Sinjavi that on 16th December, 2017 at 9:00 a.m., the uncle of the complainant namely Moulvi Baz Muhammad was sitting in his house where a boy came and informed him that his Burma is being demolished, on which his uncle Moulvi Baz Muhammad, Haji Sultan Muhammad sons of Haji Gulab, his (complainant's) brother Muhammad Ayub, Aminullah went towards Burma where Haji Zardad, Abdul Aziz sons of Haji Ghulam Rasool, Rasool Shah son of Sher Khan, Asmatullah, Inayatullah sons of Haji Zardad, Abdul Samad son of Farooq were demolishing the Burma. It was alleged that there was a tractor and townace vehicle. It was alleged that accused Haji Zardad, Rasool Shah, Asmatullah and Inayatullah were having Kalashnikovs while others were having dandas. It was alleged that the accused persons started indiscriminate firing. It was alleged that two shots fired by accused Asmatullah hit Haji Sultan, one on his left chest and other on his left leg due to which he became seriously injured. One bullet hit his (complainant) brother Muhammad Ayub on his right leg, while one bullet hit thigh of Aminullah, whereas Moulvi Baz Muhammad received injuries by means of dandas and stones. It was alleged that Haji Wali, Paideen and others Killi inmates came there and rescued them and brought the injured to Civil Hospital Sinjavi, while Haji Sultan succumbed to the injuries on his way to hospital. With these allegations FIR No. 21 of 2017, under Sections 302, 324, 147, 148, 149, P.P.C. was registered with Levies Sinjavi District Ziarat.

3. After registration of the case the investigation of the case was entrusted to PW-9 Abdul Khaliq Naib Rasaldar Levies Sinjavi, who prepared injury memos of injured, inquest report of deceased, inspected the site, prepared site inspection memo, obtained MLCs, recorded statements of witnesses under section 161, Cr.P.C, got prepared scaled map of the site, interrogated the arrested accused and after completion of investigation submitted incomplete challan.

4. On receipt of challan the Sessions Judge, Loralai (trial court) read over charge to the appellants who pleaded not guilty to the charge and claimed trial. The prosecution in order to substantiate the accusation produced nine witnesses. Meanwhile the appellants filed Criminal Revision Petition No. 58 of 2019 before this court and this court vide order dated 17th May, 2019 restrained the trial court from announcement of judgment till disposal of the revision petition. The trial court vide judgment dated 18th May, 2019 convicted and sentenced the appellants. Against their conviction the appellants filed Criminal Appeal No. 171 of 2019 before this court which was accepted vide judgment dated 20th June, 2019 and matter was remanded to the trial court with direction to keep the matter pending till decision of Criminal Revision Petition No. 58 of 2019. Subsequently this court disposed of Civil Revision Petition No. 58 of 2019. Whereafter, the appellants filed application under section 540, Cr.P.C. before the trial court which was dismissed vide order dated 31st December, 2019. Being aggrieved the appellants filed Criminal Revision Petition No. 18 of 2020 before this court which was accepted vide order dated 17th March, 2020. Thereafter, the statement of Abdul Wali was recorded as CW-1.

5. PW-1 Muhammad Ghazali is complainant of the case. He reiterated the contents of his written application Ex: P/1-A. PW-2 Muhammad Ayub, PW-3 Aminullah are injured of the incident. PW-4 Paideen is ocular witness of the incident. PW-5 is Zala Khan. PW-6 Nizamuddin Levies Sepoy produced recovery memos. of ten (10) empty cartridges as Ex: P/6-A, blood stained earth as Ex: P/6-B, blood stained cloths of deceased Sultan as Ex: P/6-C, blood stained cloths of injured Muhammad Ayub and Aminullah as Ex: P/6-D, blood stained cloths of deceased Baz Muhammad as Ex: P/6-E. PW-7 Dr. Saifullah Khan Senior Medical Officer THQ Hospital Sinjavi produced Medico Legal Certificates of deceased Sultan, injured Aminullah and Muhammad Ayub as Ex: P/7-A, Ex: P/7-B and Ex: P/7-C. PW-8 Dr. Noor Baloch, Police Surgeon Civil Sandeman Provincial Hospital Quetta produced MLCs, of deceased Moulvi Baz Muhammad as Ex: P/8-A, injured Muhammad Ayub as Ex: P/8-B and injured Aminullah as Ex: P/8-C. PW-9 Abdul Khaliq Rasaldar Levies is Investigating Officer, who produced FIR as Ex: P/9-A, site plan Ex: P/9-E, recorded statements of prosecution witnesses under section 161, Cr.P.C, incomplete challan Ex: P/9-L, FSL Report of blood-stained earth as Ex: P/9-P.

6. After close of prosecution side the appellants were examined under section 342, Cr.P.C. in which they denied the allegation of prosecution. The appellants neither examined themselves under section 340(2), Cr.P.C nor produced any witness in their defence.

7. On conclusion the trial court vide judgment dated 14th October, 2020 convicted the appellants in the following manner: "

32. Therefore, Asmatullah son of Zardad and Abdul Aziz son of Ghulam Rasool Caste Dummar residents of village Poi Tehsil Sinjavi District Ziarat are liable to be convicted under sections 302(b), 324, 337-AF/34 P.P.C. Accordingly, the accused Asmatullah son of Zardad and Abdul Aziz son of Ghulam Rasool are convicted under section 302(b) P.P.C. to be punished with death imprisonment and they shall be hanged till their death with fine of Rs. 300,000/- (Rupees three hundred thousand only) each, as compensation under section 544-A, Cr.P.C. to the legal heirs of deceased Sultan Muhammad and Molavi Baz Muhammad. In default in pay of fine, they will further undergo six (06) months S.I. each. Accused Asmatullah son of Zardad and Abdul Aziz son of Ghulam Rasool are convicted under section 324, P.P.C. and sentenced for a period of five (05) years RI and fine of Rs. 20,000/- (Rupees twenty thousand) each. In default of payment of fine, they will further undergo SI for two (02) months each. The accused facing trial Asmatullah son of Zardad and Abdul Aziz son of Ghulam Rasool are convicted under section 337-A(i)/34, P.P.C and sentenced to undergo one (01) year RI each and shall pay Rs.20,000/- (Rupees twenty thousand only) each as Daman to injured Muhammad Ayub and Aminullah. Also; accused Asmatullah son of Zardad and Abdul Aziz son of Ghulam Rasool are convicted under sections 337-F(i)/34, P.P.C. and sentenced to undergo one (01) year RI each and they shall pay Rs. 50,000/- (rupees fifty thousand only) each as Daman to injured persons Muhammad Ayub and Aminullah. In case of non-payment of Daman, the convicts be dealt with as per provisions of section 337-Y of P.P.C. The benefit of section 382-B, Cr.P.C is extended in favour of convicts and all the sentences awarded to convicts shall run concurrently. Since the accused Asmatullah and Abdul Aziz are in custody, shall be shifted to Central Jail Mach along with commitment warrant to serve out their awarded sentence .." Hence the appellants have filed Criminal Appeal No. 218 of 2020, whereas the trial court has forwarded Murder Reference No. 07 of 2020 for confirmation of death sentence or otherwise.

8. Learned counsel for the appellant stated that the trial court has not appreciated the testimony of witnesses in its true perspective. The material contradictions in the statements of prosecution witnesses have not been considered. One of the deceased Moulvi Baz Muhammad died in road accident. In this regard CMH Authorities issued medical certificate. No recovery of arms has been effected from the appellants. The Investigating Officer failed to take into possession blood stained earth from the place of occurrence. The judgment of the trial court is based on misreading and non-reading of evidence.

9. The learned Deputy Prosecutor General assisted by learned counsel for complainant strongly opposed the contention of learned counsel for the appellants and stated that the prosecution has proved its case by cogent, trustworthy and reliable evidence. Despite lengthy cross-examination the defence has failed to extract any material which could benefit the appellants.

10. Heard and perused the record. The prosecution in order to substantiate the accusation examined nine witnesses. PW-1 Muhammad Ghazali (complainant), PW-2 Muhammad Ayub (injured), PW-3 Aminullah (injured) and PW-4 Paideen are ocular witnesses. The witnesses in their statements have narrated the details of alleged occurrence. The witnesses in their testimonies stated that deceased Haji Sultan received bullet injuries fired by appellant Asmatullah. The injured witnesses also received bullet injuries. The witnesses have also ascribed specific role of causing danda and bullet injuries to deceased Baz Muhammad by appellant Abdul Aziz and absconding accused. The deceased Haji Sultan and injured sustained bullet injuries as a result of firing made by appellant Asmatullah. The presence of witnesses at the spot cannot be doubted which otherwise was never challenged during cross-examination, why the trustworthy statements of injured and ocular account could be brush aside. The defence failed to point out any reason for non-believing the straight forward testimonies of eye-witnesses. The state-ments of prosecution witnesses are completely unisom on material point. The defence has not denied unnatural death of deceased and injuries sustained by injured witnesses. The defence failed to point out any reason for false involvement. It could not be believable that son and brother of deceased let free the real culprit and involve an innocent person for committing murder of their beloved ones.

11. So far as the contention of learned counsel that the witnesses are related one and despite availability of independent witnesses the prosecution failed to produce the same has no force. It is settled proposition of law that mere relationship with deceased or injured could not discredit a witness unless his evidence does not inspire confidence. An interested witness is one who has motive for false implicating the accused. Friendship or relationship with the deceased will not be sufficient to disbelieve the falseness of witness(s). Where defence alleged that the witnesses have implicated the accused falsely the defence has to prove the allegation. Merely on the basis of bald assertion the testimony of material witness(s) could not be discarded. Reliance is placed on cases Muhammad Abbas alias Abbasio v. The State 2008 SCMR 1527, Muhammad Mansha v. The State 2001 SCMR 199 and Riaz Hussain v. The State 2001 SCMR 177.

12. As far recovery of crime weapon is concerned. The recovery of crime weapon is not considered as mandatory requirement of law. Same being circumstantial or corroborative piece of evidence only tends corroboration to the other pieces of evidence. The ocular testimony cannot be disbelieved merely on non recovery of crime weapon.

13. PW-7 Dr. Saifullah and PW-8 Dr. Noor Baloch produced MLCs of deceased and injured which confirmed unnatural death of deceased and injuries on injured caused by bullet. The medical evidence confirmed the ocular account. Though the medical evidence confirms the nature of death and kind of weapon used but cannot be discarded without any reason. Reliance is placed on the case of Muhammad Tariq alias Tara v. The State 2009 SCMR 1260.

14. The learned counsel for the appellants stated that the trial court has not considered the contradictions in testimonies of eye-witnesses has no force. The statements of material witnesses cannot be discarded even if there appear some minor discrepancies. Omission of the prosecution witnesses in respect of exact timing cannot be termed as dishonest without establishing animosity of the witnesses against the appellants. It is settled proposition that these contradictions will be considered fatal the prosecution case which materially affects the ocular account. Reliance is also placed on case Zakir Khan v. The State 1995 SCMR 1793, wherein it was held: "

13. The evidence recorded in the case further indicates that all the prosecution witnesses have fully supported each other on all material points? However, emphasis has been laid by Mr. Motiani upon the improvements which can be found by him in their respective statements made before the Court and some minor contradictions in their evidence were also pointed out. A contradiction, unlike an omission, is an inconsistency between the earlier version of a witness and his subsequent version before the Court. The rule is now well established that only material contradictions are to be taken into consideration by the Court while minor discrepancies found in the evidence of witnesses, which generally occur, are to be overlooked. There is also a tendency on the part of witnesses in this country to overstate a fact or to make improvements in their depositions before the Court. But a mere omission by witness to disclose a certain fact to the Investigating Officer would not render his testimony unreliable unless the improvement made by the witness while giving evidence before the Court has sufficient probative force to bring home the guilt to the accused."

15. The occurrence took place in broad daylight. The parties are known to each other. There is no question of mistaken identity. The ocular witnesses remained stood firm during cross-examination. The witnesses ascribed specific role to appellants and absconding accused. The appellants with absconding accused with common intention assaulted the complainant party due to which two persons lost their lives and two sustained injuries. The FIR was registered promptly with nomination of the appellants and absconding accused.

16. The complainant alleged the motive for occurrence but there is no evidence on record to prove that the appellant had demolished the Burma by tractor. No tractor was taken into possession. The Investigating Officer has not produced any witness to the effect whether the complainant party had a Burma. The witnesses alleged that appellant No. 1 and three others have made indiscriminate firing by automatic weapons but only 10 casing of Kalashnikov were recovered from the place of occurrence during site inspection. The prosecution has not alleged that there exists previous enmity between the parties. Reliance is placed on case Bakht Munir v. The State 2020 SCMR 588, wherein it was held: "

4. It is crystal clear that there was no previous enmity between the parties. The circumstances of the case unequivocally suggest that the occurrence had taken place at the spur of the moment without any premeditation on the part of the appellant.

5. For the foregoing, the instant criminal appeal is partly allowed. The conviction of the appellant under section 302(b), P.P.C. is upheld and the sentence of death of appellant on two counts is converted into imprisonment for life on two counts. The convictions and sentences of appellant on other penal heads are maintained. The amounts of compensation and sentences in default thereof are also not disturbed. Benefit of section 382-B, Code of Criminal Procedure is extended to the appellant. All his sentences of imprisonment shall run concurrently."

17. The complainant of case FIR No. 22 of 2017 registered FIR against the accused/ respondents at Levies Thana Sinjavi. The Investigating Officer submitted challan. The trial court after full dressed trial acquitted the accused/ respondents vide judgment dated 14th October, 2020. The complainant filed Criminal Acquittal Appeal No. 277 of 2020.

18. As per complainant yesterday i.e. 16th December, 2017 his father, brother, uncle and cousins were going towards their land, meanwhile from the house of Haji Sultan Muhammad firing was started with Kalashnikov but they escaped unhurt, whereafter, the accused attacked on his father and brother Javed Shah by means of Dandas and stone due to which they sustained injuries. It would be relevant to reproduce section 417, Cr.P.C. which reads as under: "417.Appeal in case of acquittal. (1) Subject to the provision of subsection (4), the Provincial Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any court other than a High Court. (2) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf grants special leave to appeal from the order of acquittal the complainant may present such an appeal to the High Court. (2-A) A person aggrieved by the order of acquittal passed by any court other than a High Court may, within thirty days, file an appeal against such order. (3) No application under sub-section (2) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order. (4) If, in any case, the application under subsection (2) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under subsection (1). "

19. By inserting subsection (2-A) in section 417, Cr.P.C. only remedy by way of appeal was provided to an aggrieved person against the order of acquittal passed by any court other than High Court. By inserting the referred amendment to confer a right on a person aggrieved by acquittal order in order to broader the scope. The record indicates that the complainant is not injured nor set a ground that the injured due to minor or inability to file appeal. In Muhammad Tufail's case (2009 PCr.LJ 127) it was held: "

It is settled proposition of law that the appeal against acquittal in a hurt case defined by the P.P. C. and tried by courts constituted under Criminal Procedure Code shall be competent by a person who has been hurt or by any of the legal heirs within the scheme of law otherwise the appeal against acquittal would be incompetent."

20. The purpose of filing appeal against an acquittal or person must be the person whose personal right affected and not only general right. The victim and in case of death his legal heir and blood relation would be the persons aggrieved for the purpose of filing appeal against acquittal. Reliance is placed on reported case of this court titled as Mir Gul v. Abdul Karim 1999 PCr.LJ 1507, wherein it was held: "Applying the golden principle of interpretation of statute that words used in a section must be given their plain grammatical meaning, it may be seen that subsection (2-A) of section 417, Cr.P.C. opens within "A" then words have been used "person aggrieved", therefore, plain meaning of word "A" with reference to filing of an acquittal appeal would be that a person who has got significance/pivotal role in the judgment/ determination of the case. Thus, that a person could be a person who is primarily interested in conviction of the accused because he has allegedly caused hurt to him. In this context the definition of "a person aggrieved" under Black's Law Dictionary reproduced hereinabove, can also be referred according to which seizure is one who is the victim of search and seizure and distinction from one which is prejudice only through the use of evidence gathered in such direct at some one else. In the Ballentine's Law Dictionary as well "aggrieved party" means one who has interest recognized by law in the subject-matter which is injuriously affected by the judgment or one whose property rights or personal interests are directly affected by operation of the judgment or decree, therefore, with reference to filing of appeal against acquittal order only that person would be aggrieved party whose right has been recognized under the law for claiming that the person who has caused hurt to him must be punished in the same manner. In fact, this is the basic idea, which has been introduced in the Islamic Law pertaining to homicide and body hurt. As it has been observed hereinabove that under amended section 345, subsection (2) a person on whom an attempt of Qatl-e -Amd has been made has got right to compound the offence meaning thereby that vice versa the person on whom attempt to commit murder has been made would be aggrieved person. Interchanging this expression with aggrieved party in terms of the dictionary definitions referred to hereinabove would be that special person who could initiate proceedings to challenge the acquittal. This aspect of the case can also be viewed from another angle that in the cases where complaint or FIR has been lodged by a person who is only the informer and is not inter se related with the victim and ultimately if the accused to respect whereof he has given the information that he is liable for criminal action is acquitted, then in that case the informer in such capacity would not be a competent person to file appeal. In order to further elaborate this proposition reference to the definitions of "Wali" under section 299, Clause (m), P.P.C. would not be out of context according to which "Wali" means a person entitled to claim Qisas. Similarly section 337-O, P.P.C. defines Wali in case of hurt according to which Wali shall be the victim provided that if the victim is a minor or insane, his right of Qisas shall be exercised by his father or paternal grandfather howsoever high and the heirs of the victim if the later dies before the execution of Qisas and the Government in absence of the victim or the heirs of the victim. Thus, according to plain language of this section as well in the case of hurt to a victim, status of Wali under the Islamic Law has been given, as such applying the principle of internal aid to interpret a statute, by making reference to different provisions under the same law, i.e. section 345(2), Cr.P.C. and seeking help from section 337(O), P.P.C. we are inclined to hold that under section 417(2-A), Cr.P.C. the victim being "a person aggrieved" would have a right to file appeal as far as the informer and any one else even being the heir of E victim would not be competent to file appeal in the cases of hurt. Thus, for the foregoing reasons above question is answered as follows: "Appeal under section 417(2-A), Cr.P.C. in a hurt case defined by the P.P.C., and tried by the Courts constituted under Criminal Procedure Code shall be competent by a person who has been hurt, and if he is a minor or insane then appeal will be competent on his behalf by his C father and grandfather or a paternal grandfather how-so-ever-high he may be. If he (convict) dies for any other reason before final decision of the hurt case then appeal would be competent by his legal heirs. " As in the instant case injured Kotan is admittedly neither a minor nor insane and he is also alive, therefore, appeal by Mir Gul is incompetent, as such it is dismissed." In view of above circumstances the appellant Bismillah is not an aggrieved person, therefore, the appeal is not competent, which is accordingly dismissed. Therefore, in view and circumstances of the case the appeal is partly allowed. The conviction and sentence under section 302(b), P.P.C. is upheld and death sentence of appellants is converted to imprisonment for life with fine of Rs. 300,000/- each (Rupees three hundred thousand) as compensation under section 544-A, Cr.P.C. to be paid to the legal heirs of deceased Sultan Muhammad and Moulvi Baz Muhammad. In default thereof they shall further undergo six (06) months each. The other sentences shall remain intact. All the sentences shall run concurrently. Benefit of section 382-B, Cr.P.C. also extended in favour of the appellants. Resultantly the Murder Reference No. 07 of 2020 is answered in negative. JK/49/Bal. Order accordingly.