2019 P Cr (PLP)

ABDULLAH BALOCH, J.

This judgment disposes of Criminal (ATA) Appeal No.235 of 2017 filed by the appellant Muhammad Arif son of Muhammad Hayat, against the judgment dated 12th August 2017 (hereinafter referred as, "the impugned judgment") passed by the learned Special Judge Anti-Terrorism Khuzdar Camp at Mastung, (hereinafter as, "the trial Court"), whereby the appellant was convicted under section 302(b), P.P.C. read with section 7(1)(a) of Anti-Terrorism Act, 1997 and sentenced to suffer imprisonment for life with compensation of Rs.300,000/-, which in case of recovery was directed to be paid to the legal heirs of deceased Muhammad Salah, while in case of non-payment thereof, the appellant to further suffer six (06) months' S.I.; under section 337-F(iii), Q&D to suffer three (03) years' R.I. and to pay Rs.30,000/- as Daman within the period of one year; under section 7(1)(h) of A.T.A., 1997 to suffer five (5) years' R.I. with fine of Rs.50,000/- and in default thereof to further suffer one (01) year's R.I.; under section 296, P.P.C. to suffer one (01) year's R.I. with fine of Rs.10,000/- and in default thereof to further suffer three months' S.I. Vide impugned judgment, the trial Court has acquitted absconding accused Fazal Muhammad and Nasrullah, while convicted the absconding accused Muhammad Alam and Muhammad Din under section 21-L of ATA and sentenced to suffer five years' R.I. each with fine of Rs.50,000/- each and in default thereof to further suffer one (1) month's R.I. each.

2. Facts of the case are that on 28th July 2013, the complainant Muhammad Anwar son of Raees Muhammad Hussain, lodged FIR No.18 of 2013 at Levies Thana Kalat under sections 302, 324, 109, 34, P.P.C. read with section 07 of A.T.A., 1997, stating therein that on the night of occurrence at about 9.30 p.m. they were busy in performing Namaz-e-Taravee at Masjid of Killi Giyanwandra, when all of sudden Muhammad Arif (appellant) along with absconding accused Muhammad Alam, being armed with weapons, entered into the Masjid and made firing upon his brother and father, due to which his brother Muhammad Salah died at the spot, while his father Raees Muhammad Hussain received serious injuries. It is alleged in the FIR that the accused persons were having support of Fazal Muhammad son of Shafi Muhammad, Nasrullah son of Fazal Muhammad, Muhammad Din son of Muhammad Arif and 10/15 other persons. After the incident the accused persons left the Masjid and made severe aerial firing with the help of unknown accused persons to spread terror and panic in the area. The motive behind the occurrence is stated to be a matrimonial dispute.

3. In pursuance of above FIR, initially the investigation of the case was conducted by PW-11 Muhammad Anwar, Risaldar/1st Investigating Officer (I.O.), who during investigation visited the place of occurrence; took into possession two empties of Kalashnikov and one empty of pistol from inside the Masjid, while collected 20-empties of Kalashnikov from surroundings of the Masjid; took into possession the piece of blood stained carpet laying in the Masjid; recorded the statements of witnesses under section 161, Cr.P.C.; prepared site map; carried out proceedings under section 174, Cr.P.C. by preparing the inquest report; obtained MLC of the deceased and the injured from Civil Hospital Kalat; took into possession the wearing washed clothes of deceased and injured; submitted the challan under section 512, Cr.P.C. in the trial Court. PW-12 Abdul Zahoor, Risaldar is the 2nd I.O., who during investigation on 24th January 2016 arrested the appellant from the area of Wadh and subjected him to investigation; recorded the statements of witnesses Muhammad Yousaf and Muhammad Karim under section 161, Cr.P.C.; inserted section 295, P.P.C. read with section 7 of A.T.A., 1997 in the challan and submitted the same in the Court for trial of appellant.

4. On receipt of challan and after non-execution of non-bailable warrants of arrest of absconding accused Muhammad Alam, Muhammad Din, Fazal Muhammad and Nasrullah, the learned trial Court declared them as proclaimed offenders by initiating proceedings under sections 87 and 88, Cr.P.C.

5. At the trial, the prosecution produced twelve witnesses, whereafter the appellant was examined under section 342, Cr.P.C. The appellant did not record his statement on oath under section 340(2), Cr.P.C., but produced two witnesses in his defence. On conclusion of trial and after hearing arguments, the appellant was found guilty of the charge and was convicted and sentenced as mentioned above in para No.1. Whereafter, the instant appeal has been filed.

6. Learned counsel for appellant contended that it is a case of no evidence at all as only the evidence of blood relations, close relatives and interested witnesses have been produced, thus the case of prosecution is lacking independent corroboration; that all the prosecution witnesses could not justify their presence at the relevant time and even their conduct appears to be unnatural; that all the witnesses have contradicted each other on material counts and even made certain dishonest improvements from their earlier depositions; that no recovery of crime weapon has been effected from the possession or pointation of the appellant; that the facts and eircumstances of the case would suggest that the prosecution has miserably failed to establish the charge against the appellant through concrete or solid evidence and even the case of prosecution is full of doubts, but the benefit of such doubts were not extended in favour of appellant; that the impugned judgment suffers from misreading, non-reading and mis-appreciation of evidence available on record.

7. Conversely, the learned Additional Prosecutor General while supporting the impugned judgment contended that the prosecution has satisfactorily discharged its onus to prove its case against the appellant beyond reasonable shadow of doubt through cogent and confidence inspiring evidence; that all the witnesses recorded their statements in line with each and they fully corroborated the case of prosecution on all material counts and not only the witnesses have correctly narrated the date, time and manner in which the occurrence had taken place, but also the appellant by his parentage was identified in the trial Court, thus rightly the learned trial Court awarded conviction and sentence to the appellant through the impugned judgment, which is not open for interference by this Court.

8. Heard the learned counsel and perused the available record. The admitted feature of the case is that the prosecution in order to establish the case produced the evidence of twelve witnesses and excluding the Medical Officer and the two Investigating Officers, all the remaining nine witnesses are claiming to be the direct eye-witnesses of the occurrence and moreover all the nine witnesses being relatives are closely related with each other and the minute appraisal of their testimony suggests that the trial Court has failed to appreciate the evidence in its true perspective and has come to a wrong conclusion by awarding conviction and sentence to the appellant.

9. The complainant of the case namely Muhammad Anwar, who is the son of injured Raees Muhammad Hussain and the brother of deceased Muhammad Salah appeared in the Court as PW-1, who in his Court statement has contradicted the contents of fard-e-bayan Ex.P/1-A. According to the contents of FIR at the relevant time, when they were busy in offering Namaz-e-Taravee, the appellant Muhammad Arif and absconding accused Muhammad Alam being armed forcibly entered in the Masjid and made firing upon his brother and father, due to which his father sustained serious injuries, while his brother Muhammad Salah succumbed to the injuries at the spot. However, while recording his statement in the Court, the PW-1 made dishonest improvements from his earlier deposition and recorded a different story by stating that in the night of occurrence when they were offering their Namaz-e-Taravee in the Masjid, in the fourth Rakat he heard Kalashnikov was bolted; accused persons shouted that the members of Raees Muhammad Hussain be separated on one side, however, in order to control the situation, the Pesh-Imam ended the prayer and they inquired about the matter from the accused persons, but in the meantime, they made firing, due to which his elder brother Muhammad Salah died at the spot, while his father became injured. PW-1 in his cross-examination admitted his relation with other witnesses and brought on record that Muhammad Wafa (PW-10) and Muhammad Yousaf (not produced in the Court) are his brothers, while Muhammad Aslam (PW-4) is his relative whereas the witness Muhammad Ashraf is the paternal cousin of his father, likewise, PW-9 Hazoor Bakhsh was the son in law of deceased Muhammad Salah besides, the said Hazoor Bakhsh is also his paternal cousin. PW-1 made his ignorance that on 20- 01-2012 his father had lodged FIR against the appellant and absconding accused Muhammad Alam for offences under sections 324, 365, 354, 427, 147, 148 and 149, P.P.C., in which he along with his brothers Muhammad Wafa (PW-10) and Muhammad Yousaf appeared as witnesses. PW-1 made his ignorance that accused Muhammad Ali alias Babul abducted Mst. Fazeela who is the daughter of Muhammad Alam the wife of Muhammad Din. He admitted in his cross-examination about the dishonest improvements made by him in his Court statement and stated that he had mentioned in the Fard-e-bayan that in order to control the situation the Pesh Imam of the masjid ended the prayer or that the accused shouted that the members of Raees Muhammad Hussain be separated as well as the noise of hearing of bolting of Kalashnikov in the fourth Rakat.

10. The Pesh Imam of the Masjid Hafiz Abdul Malik being an independent witness appeared as PW-2 and he has narrated a different story from the case of prosecution and while contradicting the statement of PW-1, he has fully exonerated the appellant from commission of crime. According to this witness at the time of prayer he heard bolting of rifle and after ending the prayer he saw two persons with muffled faces, who made firing upon Muhammad Salah and Raees Muhammad Hussain, which resulted into murder of Muhammad Salah and injuries to Raees Muhammad Hussain. According to PW-2 after making firing the accused escaped from the place of occurrence and he heard from the neighbours that the accused persons were Muhammad Alam and Muhammad Din. The statement of this witness divulges the fact that he has not at all named the appellant as assailant, who made firing upon the victim party. Thus, serious dent has been caused to the case of prosecution with regard to presence of the appellant at the site or his participation in the crime.

11. The injured witness Raees Muhammad Hussain appeared as PW-3, the perusal of his statement reflects that he has failed to mention the exact date and month of the occurrence. PW-3 has contradicted the statements of PW-1 and PW-2. According to this witness his son Muhammad Salah inquired from accused about the matter, while the statements of PW-1 and PW-2 are silent in such behalf. PW-3 denied the suggestion that he had lodged FIR No.2 of 2012 at Levies Thana Kalat against the accused Muhammad Arif and Muhammad Alam, while it is evident from perusal of record that not only the PW-3 had lodged such FIR, but also after trial both the appellant Muhammad Arif and absconding accused Muhammad Alam were acquitted of the charge. It appears from the record that PW-3 has made an attempt to camouflage the actual facts from the Court.

12. Likewise, PW-4 Muhammad Aslam is also claiming to be the eye-witness of the occurrence, but he also contradicted the statement of PW-2 as this witness has not mentioned whether the accused persons were muffled face or otherwise. PW-4 admitted in his cross-examination that injured Raees Muhammad Hussain is elder of his sub-caste. He further admitted that Raees Muhammad Hussain is father in law of his daughter and Muhammad Anwar is his son in law. PW-5 Allah Rakia, is also claiming to be the eye-witness of the occurrence, but he made his ignorance that whether his statement was recorded by the Investigating Officer, or otherwise. He admitted that the injured Raees Muhammad Hussain is their elder in Giyawandra. PW-5 admitted that the appellant Muhammad Arif is permanent resident of Wadh, where he works as agriculturist. PW-6 Abdul Rehman is also claiming to be the eye-witness of the occurrence, who stated that he saw the absconding accused Muhammad Alam and a muffled face person Muhammad Arif being armed with Kalashnikov and pistol. PW-6 made his ignorance about existence of criminal case in between the parties and further admitted that since long the appellant is residing at Wadh, however, denied the suggestion that on the day of occurrence he was at Wadh.

13. PW-7 Muhammad Ashraf being the eye-witness of the occurrence has altogether contradicted the case of the prosecution by nominating three accused persons in the crime, who have allegedly committed the crime i.e. the appellant along with absconding accused Muhammad Alam and Muhammad Din, while throughout the prosecution case and even all the prosecution witnesses have not named the accused Muhammad Din accompanying the accused Muhammad Alam and Muhammad Arif at the time of alleged occurrence. PW-8 Dr. Abdullah Jan Langove, Medical Officer examined both the deceased and the injured and issued MLCs as Ex.P/8-A and Ex.P/8-B. PW-9 Hazoor Bakhsh is also claiming the eye-witness of the occurrence, who named the appellant Muhammad Arif and the absconding accused Muhammad Alam being armed with Kalashnikov and pistol made firing upon the deceased Muhammad Salah and upon his injured father Raees Muhammad Hussain. He also the recovery witness of wearing clothes of deceased and injured, but prior to taking into possession by the Investigating Officer, the same were washed. This witness contradicted his earlier statement and made dishonest improvement in his Court statement. PW-9 in his cross-examination the dishonest improvement made by him and stated that he in his earlier statement has not stated that the absconding accused Muhammad Alam was armed with pistol, while accused Arif was armed with Kalashnikov and appellant Muhammad Arif made firing with Kalashnikov, which hit to the deceased Muhammad Salah and his father Raees Muhammad Hussain. PW-10 Muhammad Wafa is the second brother of deceased and the son of injured Raees Muhammad Hussain. This witness is also claiming to be the eye-witness of the occurrence and stated that the accused whilst entering in the Masjid bolted the Kalashnikov and shouted that if any person made any movement, he will be killed. It has been observed that this sentence for the first time has been introduced by the present witness, while earlier none of the witnesses have recorded their statements by narrating such words. PW-10 while contradicting his father PW-3 and admitted in his cross-examination that earlier his injured father Muhammad Raees had lodged FIR against the appellant Muhammad Arif and absconding accused Muhammad Alam, in which he has also recorded his statement, however, the accused were acquitted in the said case. PW-10 further admitted that Muhammad Ali had abducted/eloped the wife of accused Muhammad Din. This witness further admitted that the appellant Muhammad Arif is residing at Wadh for a long period, where he is doing agriculturist work. PW-11 and PW-12 being the Investigating Officer counted the steps taken by them during investigation.

14. It has been observed that the appellant has taken the plea of alibi and stated that on the date of occurrence he was present in Wadh and even on the night of occurrence he himself was Imam of Namaz-e-Taravee in Wadh. In support of his contention, the appellant produced DW-1 Abdul Shakoor and DW-2 Raza Muhammad, who stated that on the night of alleged occurrence they performed their Namaz-e-Taravee under the Imamat of appellant Muhammad Arif at Wadh.

15. We have taken into consideration the statements of all the prosecution witnesses with great care and caution and have come to the conclusion that not only all the witnesses made contradictory statements with each other and made certain dishonest improvements, but also, they have failed to justify their presence at the relevant time. All the witnesses have stated that two accused persons entered into the Masjid and made firing upon the victims, but PW-7 named three accused persons by stating that the accused Muhammad Alam, Muhammad Arif and Muhammad Din participated in the crime. PW-2 being Pesh-Imam of the Masjid has fully exonerated the present appellant from commission of crime by stating that two muffled face persons entered in the Masjid and made firing upon the victim party and outside the Masjid the neighbours identified the accused Muhammad Alam and Muhammad Din. Likewise, the statement of PW-1 and other witnesses are silent to the effect that whether the accused persons have concealed their faces with mufflers or otherwise. It has further been observed that some of the witnesses have made an attempt to conceal their relation with the victim party, but their such relations were revealed through the statements of other witnesses.

16. As per own version of prosecution case, whilst entering into the Masjid the accused shouted that the members of Raees Muhammad Hussain party be separated and thereafter they made firing upon the deceased Muhammad Salah and injured Raees Muhammad Hussain, but the fact remains that the complainant/PW-1 and PW-10 Muhammad Wafa were also the sons of Raees Muhammad Hussain and the accused could easily also target them. Even otherwise, it has further been observed that all the persons present in the Masjid were belonged to sub-caste of Raees Muhammad Hussain and the injured Raees Muhammad Hussain was the elder of sub-caste of the persons offering their prayer in the Masjid. Besides, PW-1 is the brother of deceased Muhammad Salah and the son of PW-3 Raees Muhammad Hussain, PW-10 is also the brother of the complainant and the deceased Muhammad Salah, while the son of PW-3. Likewise, PW-3 Raees Muhammad Hussain is the father-in-law of the daughter of PW-4 Muhammad Aslam, PW-9 Hazoor Bakhsh is the son in law of deceased Muhammad Salah as well as the paternal cousin of deceased and complainant. Similarly, all the witnesses have admitted in their cross-examinations that the injured Raees Muhammad Hussain is their elder, meaning thereby that all the persons were belonged to the party of injured Raees Muhammad Hussain, thus all the witnesses could also easily be targeted by the accused party, but only the deceased Muhammad Salah and his father Raees Muhammad Hussain were hit and all the remaining witnesses including the brothers of deceased i.e. PW-1 and PW-10 were let free by accused party. The presence of all the witnesses especially the presence of PW-1 and PW-10 being the sons of injured PW-3 at the place of occurrence is absolutely doubtful for the reasons that the complainant/PW-1 along with his brother PW-10 Muhammad Wafa including the deceased were on the target of the appellant having pistol and Kalashnikov in their hands, but the deceased brother and injured father of the complainant were hit and the complainant along with his another brother PW-10 were let free. It does not appeal to the logic that by killing a person in presence of his real brothers, the appellant would not attempt to cause any injury/kill the prosecution witnesses leaving them for evidence to be hanged. Reliance in this regard is placed on the case of Muhammad Farooq v. State 2006 SCMR 1707. Reference in this regard is also made to the case of Dohlu v. State 2002 PCr.LJ 690.

17. The conduct of all the witnesses are also appears to be unnatural. It does not appeal to the logic that on making their entry in the Masjid the accused persons shouted that the members of Raees Muhammad Hussain party be separated and all the persons including the two sons of PW-3 i.e. PW-1 and PW-10 went aside and afford soft target to the culprits to achieve their goal to commit their murder and even no resistance was made on their behalf to rescue their old age father and younger brother. Besides, the injured PW-3 is the elder of all the witnesses, but none of the witnesses made any attempt to rescue the victims rather according to the case of prosecution the sons of the PW-3 including his tribesmen played a role of an audience, which otherwise cannot be believed in our prevailing tribal set-up. Apparently, the conduct of all the witnesses and more particularly the conduct of PW-1 and PW-10 appears to be unnatural. On this point too, the presence of all the witnesses are doubtful. We are fortified by the dictum laid down by the Hon'ble apex Court in the case of Muhammad Asif v. The State 2017 SCMR 486, wherein it was held as under: "

10. We fail to understand that in the presence of the two close friends accompanying the deceased and parents, how such tragedy with a son could happen without any intervention on their part to come to rescue of the deceased when they were not far away as shown in the site plan."

18. It has further been observed that the prosecution has also failed to produce any circumstantial evidence in support of prosecution case. The appellant Muhammad Arif was arrested by the I.O. on 24th January 2016 and subjected him to investigation, but it has failed to recover the crime weapon from the possession or on the pointation of the appellant. Thus, the recovery of empties from the place of occurrence is not helpful to the case of prosecution. Besides, the wearing clothes of the deceased and the injured though were taken into possession, but the fact remains that the same were washed and cleaned, while to the contrary it was required to have been taken into possession being stained with blood, but washing of wearing clothes of deceased and the injured have diminished the important circumstantial piece of evidence.

19. The medical evidence in this case has been furnished by PW-8 Dr. Abdullah Jan Langove, Medical Officer DHQ Hospital Kalat, yet the fact remains that medical evidence is only used for confirmation of ocular evidence regarding seat of injury, time of occurrence and weapon of offence used, etc. but medical evidence itself does not constitute any corroboration qua the identity of accused person to prove their culpability. Reliance in this regard can be placed on the case of Muhammad Sharif and another v. The State (1997 SCMR 866).

20. In view of the ocular testimony of the related/interested prosecution witnesses, contradictions and dishonest improvements in their testimony, lacking independent corroboration in material aspects, existence of previous criminal litigation as well as eloping of a woman of accused party, the false implication of the appellant by the PWs cannot be ruled out of consideration as the appellant while recording his statement on oath has taken specific plea of his false implication by PWs due to previous dispute. The perusal of impugned judgment reveals that the same is suffering from mis-appreciation of material available on record. The above defects in the prosecution case was not considered by trial Court and wrongly the benefit of such doubts was not extended in favour of the appellant. Needless to emphasize that accused were entitled to be extended benefits of doubt as a matter of right. Even an accused cannot be deprived of benefit of doubt, merely because there is only one circumstance, which creates doubts in the prosecution story, whereas in the case in hand there are series of doubts. Reliance in this regard is placed on the case of Tariq Pervaiz v. The State 1995 SCMR 1345, wherein the Hon'ble Supreme Court has held as under: "The concept of benefit of doubt to an accused is deep-rooted in our country. For giving him benefit of doubt it is not necessary that there should be many circumstances creating doubt if there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused then accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."

21. It is also golden principle of Islamic jurisprudence that it is better to acquit ten guilty persons than to convict a single innocent person. For the reasons discussed hereinabove, the appeal is accepted, the impugned judgment dated 12th August 2017 passed by learned Special Judge Anti-Terrorism Khuzdar Camp at Mastung is set aside and while extending the benefit of doubts, the appellant Muhammad Arif son of Muhammad Hayat, is acquitted of the charge in FIR No.18 of 2013 at Levies Thana Kalat, under sections 302, 324, 109, 34, P.P.C. read with section 7 of A.T.A., 1997. The appellant being in custody, is ordered to be released forthwith, if not required in any other case. JK/57/Bal. Appeal accepted.