Full Judgment Text & Judicial Ruling

2018 P Cr. L J 1595 [Balochistan (Sibi Bench)] Before Abdullah Baloch and Nazeer Ahmed Langove, JJ ALLAH BAKHSH and others---Appellants Versus The STATE---Respondent Criminal Appeals Nos. (S)63 of 2016, (S)7 and (S)15 of 2018, decided on 12th March, 2018. (a) Penal Code (XLV of 1860)--- ----Ss. 302(c), 324, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Medical evidence---Scope---Prosecution case was that accused party had made indiscriminate firing at the son of the complainant, due to which he died at the spot, while friend of deceased and a lady sustained bullet injuries---Medical Officer, who conducted post-mortem of deceased, found multiple firearm injuries on his person---Investigating Officer also examined the deceased and prepared the inquest report and confirmed that the deceased had received bullet injuries on his person---Said Medical Officer also examined the injured and found a firearm wound on left leg above the ankle joint lateral calf muscle---Female Medical Officer examined the injured lady and found dual entrant bullet injuries on the left side of chest and right lower leg and exit wound on the back of the chest and back of right leg---Medical evidence had not only confirmed the unnatural death of deceased, but also the receiving of bullet injuries by the two injured, which supported the ocular account. (b) Penal Code (XLV of 1860)--- ----Ss. 302(c), 324, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Sentence, reduction in---Ocular account---Prosecution case was that the accused party made indiscriminate firing at the son of the complainant, due to which he died at the spot, while friend of deceased and a lady sustained bullet injuries---Initially, case was tried by the Anti-terrorism Court and thereafter, was transferred to ordinary criminal court---Prosecution had produced four eye-witnesses including complainant and injured lady---Complainant reiterated the contents of his fard-e-bayan---Eyewitness corroborated the statement of complainant on all counts with regard to their arrival at place of occurrence, arrival of accused persons armed with T.T. pistol, made firing upon the deceased and his friend on the allegations of siyakari and thereafter they went to their house and made firing upon injured lady---Said witness had confirmed the presence of another eyewitness at the house of injured lady---Injured lady being the most important witness of the occurrence had deposed that accused persons came to their house and declared her siyakar and told that she would not be survived and made firing upon her, due to which she received injuries and fell down---Injured lady was shifted to hospital by the police---Statement of injured lady had also been corroborated by the other eye-witness---Record transpired that statements of all eye-witnesses would establish the fact that all of them were natural witnesses and they justified their presence at the relevant time, witnessing the crime directly---Said witnesses correctly narrated the date, time, the place of occurrence, the manner in which the accused persons appeared at the site caused the murder of the deceased and injured his companion and thereafter they injured the lady---Said witnesses were cross-examined at sufficient length, but the defence had failed to shake their testimony---Said witnesses had correctly identified the accused persons in the Trial Court---Circumstances established that defence had absolutely failed to point out any material illegality, irregularity or infirmity in the case of prosecution, warranting interference---Conviction and sentences awarded to the accused persons under S. 324, P.P.C. was ten years in first judgment, while in the second judgment, on same set of evidence, the same accused persons were convicted under S. 324, P.P.C. for five years---Sentences so awarded to accused persons under S. 324, P.P.C., in circumstances, seemed to be discriminatory in nature thus, was reduced from ten years to five years---Appeal was dismissed accordingly. (c) Penal Code (XLV of 1860)--- ----Ss. 302(c), 324, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Statements of interested witnesses---Defence had objected that only interested witnesses were produced in the trial court and the case of prosecution lacked independent corroboration---Effect---Record showed that all the witnesses were not interested witnesses---Injured lady was the sister of two accused and the close relative of remaining culprits, who received grievous injuries on her person; she was also closely related to the accused party thus, it did not appeal to the logic that both the witnesses having blood relations with the accused party, would falsely involve them---Admittedly, in male dominated society, the womenfolk would not come forward against the male specifically against their blood relatives like father, brother, cousins and tribal elders---In the present case, both the women witnesses at the risk of their lives came forward and nominated the culprits in their testimonies---Testimonies of said women were not only worth confidence, but also most reliable evidence in the case and defence had failed to give jolt or shake their testimonies---Evidence of sole lady witness was enough to establish the charge against the accused persons. (d) Criminal trial--- ----Witness---Interested witness---Statement of interested witnesses---Scope---Mere relationship of the witnesses inter se and with the deceased was not sufficient to term them as interested witnesses unless it was found that there was any previous enmity or ill-will between the parties and the witnesses had a motive to falsely implicate the accused persons in a criminal case. Khizar Hayat v. The State 2011 SCMR 429; Haji Ali Shan v. The State 2001 PCr.LJ 1320 and Allah Ditta v. The State PLD 2002 SC 52 rel. (e) Penal Code (XLV of 1860)--- ----Ss. 302(c), 324, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Single witness---Conviction---Scope---Conviction could be awarded on the statement of single witness as the quality not the quantity was required to establish a criminal charge. Niaz-ud-Din and another v. The State and another 2011 SCMR 725 and Farooq Khan v. The State 2008 SCMR 917 rel. (f) Penal Code (XLV of 1860)--- ----Ss. 302(c), 324, 147, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 40---Qatl-i -amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Disclosure by accused ---Admissibility---Disclosure of accused relating to discovery of new facts or the recovery of an incriminating evidence, was admissible under the provisions of Art. 40 of Qanun-e-Shahadat, 1984. Ahsan Rafiq Rana for Appellants (in Criminal Appeal No. (S) 63 of 2016). Muhammad Nasir Marri for Appellants (in Criminal Appeal No.(S) 7 of 2018). Hasnain Iqbal Minhas for Appellants (in Criminal Appeal No.(S) 15 of 2018). Jamil Akhtar Gajani, Additional P.-G. for the State. Abdul Jalil Lehri for the Complainant. Date of hearing: 23rd February, 2018. JUDGMENT ABDULLAH BALOCH, J.---This common judgment disposes of Criminal Appeal Nos.(S)63 of 2016, (S)07 and (S)15 of 2018. The Criminal Appeal No.(S)63 of 2016 has been filed by the appellants Allah Bakhsh and Bakhshal, sons of Shah Nawaz, against the judgment dated 22nd March 2016 passed by learned Sessions Judge, Usta Muhammad (hereinafter referred as, "the trial Court"), whereby the appellants have been convicted under section 302(b), P.P.C. and sentenced to suffer Life Imprisonment each and to pay Rs.100,000/- (Rupees One Lac) each as compensation under section 544-A, Cr.P.C. to the legal heirs of deceased and in default thereof, the appellants to further suffer six (06) months' S.I. each; under section 324, P.P.C. to suffer ten (10) years' R.I. each, with fine of Rs.10,000/- and in default thereof to further suffer six (06) months' S.I. each; under section 337-F(v), P.P.C. to suffer three (03) years' R.I. each with Daman of Rs.50,000/- (rupees Fifty Thousand) each, payable to injured Mst. Umeedan; under section 337-F(iii), P.P.C. to suffer One (01) year each R.I. with Daman of Rs.10,000/- (rupees ten thousand) each payable to injured Mst. Umeedan. The sentences awarded to the appellants under sections 324, 337-F and 337-F(iii) were ordered to run concurrently, but after the completion of life imprisonment. The benefit of section 382-B, Cr.P.C. has also been extended in favour of appellants. The Criminal Appeal Nos.07 and 15 of 2018 have been filed by the appellants Allah Dina and Asghar Ali son of Touta, respectively. against the judgment dated 3rd January 2018 passed by the learned trial Court, whereby the appellants were convicted under section 302(b), P.P.C. and sentenced to suffer Life Imprisonment each and to pay Rs.100.000/- (Rupees One Lac) each as compensation under section 544-A, Cr.P.C. to the legal heirs of deceased Sabir Hussain and in default thereof, to further suffer six (06) months' S.I. each under section 324, P.P.C. to suffer five (05) years R.I. each, with fine of Rs.5,000/- each and in default thereof to further suffer six (06) months' S.I. each: under section 337-F(v), P.P.C. to suffer three (03) years' R.I. each with Daman of Rs.50,000/- (rupees fifty thousand) each, payable to the injured Mst. Umeedan; under section 337-F(iii), P.P.C. to suffer one (01) year's each R.I. with Daman of Rs.10,000/- (rupees ten thousand) each payable to injured Mst. Umeedan. The sentences awarded to the appellants in the main case as well as in the connected Arm case vide FIR Nos.71/2014 and 76 of 2017 were ordered to run concurrently. The benefit of section 382-B, Cr.P.C. has also been extended in favour of appellants. 2. Facts of the case are that on 18th March 2014, complainant Shah Murad son of Ghous Bakhsh, lodged FIR No.67 of 2014 at Police Station City Usta Muhammad under section 302(c), 324, 147, 148, 149, P.P.C., stating therein that on the day of occurrence, he along with his son Sabir Hussain friend of his son Pervaiz and his cousin Qamar-ud-Din, was sitting in a hotel situated at Eri Lara, Usta Muhammad for taking tea, when at about 9.00 a.m. the accused Bakhtiar (absconding accused), Asghar, Allah Dina sons of Tota, Allah Bakhsh and Bakhshal son of Shah Nawaz armed with deadly weapons, entered into hotel. The appellant Asghar challenged his son Sabir Hussain that he has declared him as Siyakar with his sister Umeedan and today he will not go alive. Hence, the accused persons started indiscriminate firing at his son Sabir Hussain, due to which he died at the spot, while his son's friend Pervaiz Ali sustained bullet injuries. Thereafter the accused persons went towards their houses on their motorcycles and after 10/15 minutes, they heard firing shots towards their houses. The complainant rushed there and saw Mst. Umeedan lying in the pool of blood. On query Mst. Mawakh told that above named accused persons came there and injured Mst. Umeedan by making firing at her. 3. It appears from the record that initially the appellant Allah Dina was arrested and after usual investigation, the challan of the case was submitted before the Special Judge, Anti-terrorism Court. Dera Allah Yar, who on conclusion of trial convicted and sentenced him for death penalty, whereas the case file was kept in dormant till the arrest of remaining accused persons. The appellant Allah Dina assailed his conviction before this Court in ATA Criminal Jail Appeal No.(S)10/2015, ATA Criminal Appeal Nos.(S)49 of 2015. ATA Criminal Appeal No.(S)50 of 2015, while the learned trial Judge sent the Murder Reference No.(S)03/2015 to this court. After hearing arguments, this Court in view of the judgment passed by the Hon'ble Supreme Court of Pakistan in case titled Khuda-e-Noor v. The State, reported in PLD 2016 SC 195, has set-aside the conviction and sentence awarded to the appellant Allah Dina, vide judgment dated 30th March 2016 and referred the case file to the ordinary Court instead of Anti-terrorism Court, for trial of the appellant afresh. It is pertinent to mention here that during pendency of appeals of appellant Allah Dina on 11th April 2015, appellant Allah Bakhsh and Bakhshal were arrested and also tried by the Anti-terrorism Court Dera Allah Yar, but on 21st December 2015 their case was transferred to the Session Court Usta Muhammad and after conclusion of trial they were convicted as stated in para No.1, vide impugned judgment dated 22nd March 2016, whereafter, they filed jointly Criminal Appeal No.(S)63 of 2016. 4. Likewise, the appellant Asghar Ali was arrested on 8th April 2016 and after remand of the case of appellant Allah Dina both were tried by the same Court and the prosecution produced nine witnesses in earlier round against the appellant Allah Bakhsh and Bakhshal, while twelve witnesses including the witnesses of earlier round against the appellant Allah Dina and Asghar Ali. Whereafter, all the appellants were examined under section 342, Cr.P.C. However, neither they recorded their statements on oath under section 340(2), Cr.P.C. nor produced any witness in their defence. On conclusion of trial, they were convicted and sentenced by the trial Court, vide judgment dated 3rd January, 2018 as mentioned above in para No.1. Whereafter, they filed Criminal Appeal No.(S)07 and 15 of 2018. 5. Suffice to mention here that during investigation of the instant case, the Investigating Officer effected the recoveries of crime weapon i.e. unlicensed T.T. pistols, thus separate FIRs under section 13-E of Arms Ordinance, 1965, were registered and after trial, the appellants were convicted and sentenced in the said cases, which have also been assailed before this Court through Criminal Appeal Nos.(S)64/2016, (S)65 of 2016, (S)08 of 2018 and (S)16 of 2018. 6. Learned counsel for the appellants contended that the impugned judgments delivered by the learned trial Court are the result of misreading, non-reading and mis-appreciation of evidence available on record; that the prosecution case is full of discrepancies, dishonest improvements and false accusations with mala fide intention; that only interested witnesses have been produced and the case of prosecution is lacking independent corroboration: that the witnesses have been examined twice, who made contradictory statements on each time, which renders their testimony as doubtful: that the alleged recovery of crime weapons i.e. T.T. Pistols on the pointation of the appellants after expiry of considerable long period is entirely doubtful as the appellants could easily conceal or dispose of the crime weapons, thus no implicit reliance could be placed either on the alleged disclosure whilst recorded in police custody or on the recovery of alleged recovery of crime weapon recovered pursuant to such disclosure memos in a doubtful manner: that the most important independent witness of the prosecution namely Pervaiz, who had allegedly received bullet injuries on his feet, was not produced by the prosecution; that the prosecution has absolutely failed to establish the charge through solid and concrete evidence against the appellants, but the learned trial Court has failed to appreciate the evidence in its true and real sense and arrived at a wrong conclusion. which is perverse and contrary to material available on record, thus prayed for acquittal. 7. Learned Additional Prosecutor General assisted by learned counsel for complainant while supporting the impugned judgments contended that sufficient incriminating evidence is available on record connecting the appellants with the commission of offence, who initially arrived at the place of occurrence, armed with T.T. pistols, challenged to the deceased by declaring him Siyakar and made firing upon him, due to which the deceased as well as his companion Pervaiz Ali have received bullet injuries and thereafter the accused went to their own house and made firing upon the injured lady Mst. Umeedan, due to which she received serious injuries on her person; that the case of prosecution is supported by the medical evidence, circumstantial evidence as well as the direct evidence of injured witness and the witnesses, who witnessed the crime directly; that the case of prosecution has also been strengthened by the disclosure memos of the appellants, which were followed by the recovery of crime weapons, thus the learned trial Court has rightly convicted and sentenced the appellants through impugned judgments, which are not open for any interference by this Court. 8. We have heard the learned counsel for parties and perused the available record. Before dilating upon the prosecution evidence, it is necessary to mention here that the witnesses in the case in hand were examined twice i.e. firstly before the learned Anti-Terrorism Court. during the trial of appellant Allah Dina and secondly during the trial of all appellants before the learned Sessions Judge Usta Muhammad (the trial Court). On both occasions the witnesses appeared at different serial numbers, whereas the perusal of statements of all witnesses shows that no difference or dissimilarity have been found in their statements, thus in order to avoid any multiplicity and confusion, the witnesses according to their numbers appeared in Murder Case No.21/2016 are being discussed jointly. 9. Before dilating upon the ocular testimony, it would be appropriate to discuss the medical evidence. According to the case of prosecution, the appellants murdered the deceased Sabir Hussain, injured his companion Pervaiz Ali and the lady Mst. Umeedan. 10. So far as the unnatural death of deceased Sabir Hussain, is concerned, the same is not disputed by the defence rather taken the plea of false implication. According to PW-4 Dr. Wajid Hussain, Medical Officer, Civil Hospital Usta Muhammad, on the day of occurrence at about 10.30 a.m. he was performing his duties in Civil Hospital Usta Muhammad, when the dead body of deceased Sabir Hussain was brought by the police for examination. Thus, he conducted the postmortem of the deceased and found multiple firearm injuries on his person caused by the firearm. PW-4 opined the cause of death of deceased as excessive bleeding, brain damage and cardiac arrest. The Investigating Officer had also examined the deceased and prepared the inquest report and confirmed that the deceased had received bullet injuries on his person. The blood-stained earth collected from the place of occurrence and the blood-stained clothes of deceased were also sent to FSL for examination and after examination, the FSL report Ex.P/9-F and Ex.P/9-F confirms that the same were stained with Human Blood. 11. Similarly. on the said date, PW-4 also examined the injured Pervaiz Ali and found a firearm wound on left leg above ankle joint lateral calf muscle. He opined that the wound was caused by firearm and the duration of injury was fresh. PW-4 issued medical certificate as Ex.P/4-B, which confirms that bullet injury was caused to the injured Pervaiz Ali. 12. Likewise. PW-5 Dr. Raheela Samejo, Lady Medical Officer, Civil Hospital, Usta Muhammad, examined the injured Mst. Umeedan. According to whom on the day of occurrence, she was present in the hospital, when at about 12.30 p.m. the injured was brought in the hospital, she examined the lady and found dual entrance bullet injuries on the left side of chest and right lower leg and exit wounds on the back of the chest and back of the right leg. According to PW-5 the duration of injuries was fresh, caused by the firearm and were grievous in nature. She also produced the medical certificate as Ex.P/5-A, perusal of which confirms the receiving of multiple injuries by the injured. 13. The medical evidence produced by the prosecution has not only confirmed the unnatural death of deceased Sabir Hussain, but also receiving of bullet injuries by the injured Pervaiz Ali and Mst. Umeedan. 14. Now adverting to the ocular evidence, suffice to observe here that the prosecution has produced four eye-witnesses of the occurrence, out of whom the most important witness is PW-2 Mst. Umeedan, who was injured in the said incident, while PW-1 is the father of deceased and at the relevant time he along with another eye-witness namely Qamar-ud-Din (PW-3) was accompanying his deceased son. PW 12 Mst. Mawakh is the eye-witness of the second occurrence, when the appellants made an attempt to take the life of injured PW-2 Mst. Umeedan on the charge of Siyakari. 15. PW-1 being complainant of the case mostly reiterated the contents of his fard-e-bayan Ex.P/1-A and stated that on the day of occurrence he along with his deceased son Sabir Hussain and his paternal cousin Qamar-ud-Din (PW-3) went to Bazar for purchasing household articles, where his son met his friend Pervaiz Ali, thus they went to Hotel for taking tea, when the appellants namely Allah Dina, Asghar, Bakhshal, Allah Bakhsh and absconding accused Bakhtiar came over there on two motorcycles. The appellant Asghar Ali challenged his son by declaring him Siyakar with his sister PW-2 Mst. Umeedan and all the accused persons made indiscriminate firing upon his son Sabir Hussain, due to which his son received bullet injuries on his person and succumbed to the injuries at the spot, while the friend of his son Perviaz Ali also received bullet injury on his leg. Whereafter, the appellants went towards their house and after few minutes, again they heard firing shots, thus the PW-1 along with PW-3 Qamar-ud-Din rushed over there and found PW-2 Mst. Umeedan in the pool of blood, they also found present PW-12 Mst. Mawakh, who disclosed that all the five accused persons named above came in the house and made firing upon the PW-2 on the allegations of Siyakari. According to PW-1, they again returned to the place where his son was murdered, the police came and shifted the deceased to hospital, whereafter he lodged the FIR. 16. PW-3 Qamar-ud-Din corroborated the statement of PW-1 on all counts. He narrated the story with regard to their arrival at Hotel for taking tea, arrival of the appellants armed with T.T. pistol, making firing upon the deceased Sabir Hussain and Pervaiz Ali on the allegations of siyakari and thereafter they went to their house and made firing upon PW 2 Mst. Umeedan. PW-3 also confirmed the presence of PW-12 Mst. Mawakh at the house of PW-2 Mst. Umeedan. 17. PW-2 Mst. Umeedan is the most important witness of the occurrence, who also received bullet injuries on her person and the appellants had made all efforts to take her life, but despite receiving grievance injuries, she was luckily survived. According to this witness, on the day of occurrence she as present in her house, when at about 9.00 a.m. firing shots towards Eri Lara, while after 10/15 minutes of the said occurrence, the accused Bakhtiar, Asghar, Allah Bakhsh, Allah Dina and Bakhshal came to their house and Asghar told that he has declared her Siyakar and she will not be survived, whereafter the accused persons made firing upon her, due to which she received injuries and fell down, whereafter she was shifted to hospital by the police. 18. The statement of PW-2 Mst. Umeedan has also been corroborated by the PW-12 Mst. Mawakh. According to PW-12 on the day of occurrence she was present in the house of her brother, where she heard that some quarrel had taken place at Eri Lara. In the meanwhile, the appellants Allah Bakhsh, Allah Dina, Bukhshal and Asghar came over there on two motorcycles, the appellant Asghar told his sister PW-2 Mst. Umeedan that he has declared her Siyakar with deceased Sabir and they also murdered Sabir. On saying that, firing was made upon PW-2 Mst. Umeedan due to which she received bullet injuries and fell down, whereafter the police came and shifted the injured to hospital. 19. Reappraisal of statements of all eye-witnesses would establish the fact that all of them were natural witnesses and they justified their presence at the relevant time witnessing the crime directly. All the witnesses correctly narrated the date, time, the place of occurrence, the manner in which the appellants appeared at the site by declaring the deceased Sabir Hussain, caused the murder of deceased Sabir Hussain and injured his companion Pervaiz Ali and thereafter they also injured PW-2 Mst. Umeedan. All the witnesses were cross-examined at sufficient length, but the defence has failed to shake their testimony. All the witnesses correctly identified the appellants in the trial Court. 20. So far as the contention of the learned counsel for defence that only interested witnesses were produced in the…

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