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Petitioner: J WED ULLAH VS Respondent: THE STATE and 2 others
Court Name: Peshawar High Court Judge(s): Nisar Hussain Khan Title: J WED ULLAH vs THE STATE and 2 others Case No.: Criminal Revision No.9 of 2012 Date of Judgment:2012-05-29 Reported As: 2012 YLR 2076 Result: Petition allowed
JUDGMENT
JUDGMENT ' NISAR HUSSAIN KHAN, J.---Through instant petition, petitioner-complainant has called in question the order of learned Additional Sessions Judge-I, Bannu, dated 17-12-2011, whereby respondents- accused Adnan and Roman sons of Shafqatullah, have been declared as juvenile offenders and complainant's application for summoning Radiologist, as Court witness, has been turned down vide his order dated 3-1-2012 (wrongly mentioned in petition, as 21-11-2011). 2. The resume of the facts forming the background of instant petition is that, on the report of Shafiullah, brother of petitioner-complainant, F.I.R No.62, dated 8-5-2006, was registered against the" respondents under sections 337-F(vi)/337- F(ii), P.P.C., at Police Station Basia Khel District, Bannu. After completion of investigation, case was put in Court' for trial, where, after recording prosecution evidence, respondents were convicted and sentenced by learned trial Court vide his judgment dated 20-6-2011. Both the respondents preferred appeal against their conviction and sentence, before D.I. Khan Bench of this Court, wherein, they raised the plea of being juveniles at the time of occurrence. Their appeal was accepted, conviction and sentence, recorded by the trial Court, were set aside and case was remanded to the Trial Court for determination of age of respondents-accused and consequently for trial, de novo. 3. After remand, respondents-accused were examined by the Medical Board on 11-11-2011 and 14-11- 2011, respectively. As per reports of the Medical Board, respondent Adnan was found above 18 years of age, whereas, according to opinion of the Medical Board, respondent Roman was above 22 years. It appears from the record that both the reports about age of the respondents were not accepted by the Trial Court, due to absence of Orthopedic Surgeon in the Medical Board and .The matter was again, referred to , Chief Exeautivelifi Gul Nawaz Hospital to constitute :fresh Medical
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Board, hav1ng_ Orthopedic :Surgeon, as its member as well As per direction, of the Trial Court., bOth, Adnan and Roman were {{BLUR PAGE}} 10-Il 2011 by the Medice Board,: consisting of Dental SUrgedn,Assista Professor Orthopedic.); -...And Assistant 0r9fesaar . Radiology. And submitted-theit report,.. According: Which, both - the respondents, :have been 'shown _above__ ,224 years of :age. The learned trial.:Courcapare from - the ;report ofritbe -1401edicab-_,Boa;a4-i relied on the Secondary Sehool Certificates of ,the,sespondents and held-Them juvenile: oit the day occurrence anddeclared.Them. Offenders and ias Mehl were: Ater OVI t ;tibe iried?Underthe Jnweile JusticeeSystem.Otdinartvi)200&::iti.Appeazs?. From theb recOrtI, that Capaplainant;:; filed:,: art 1.;:application,1;:or summoning Radiologist: 4117Cobrt tet4ify, ahont his. Report andOthety ancillary+ matters ow the basis .-ofwhic3a 4egof:;thel respondents :were,-4etertnitied doqtors Thia...aPPlientiomof The.Complainant was also turned down on:3-1-2012; I . '5111, ,; A7A..,. 3c'Learned oukna; sel 0 fat pe ktilt9, p.Er argued that fearnedfr4l t, ,Cpurt; pas abienci,.! of petitioner complainant as well as lies enuAttetir that-. Warped trial, Court has relied upon i.:,10V.1 ltake-Alandil fretitionsaf.S.Choolll Cegiftsjf.Tesponclenis-accusedOSVhicli vicl.M.Agver:Prildeced- by;Themiltiring Theitt- .1.And,.. Sucli,:lias iwtonglyn declared *ern:: as ;juvenile ..:.Effentlets: maigokneCtlIkaAglgarned.:.Ttial..i.Colitt"JhaS-,, erred lit..? Layt::by4gejecting.:..Applicatioh of f.Orisunmoning of Ahe:iddctori aq/4/ )14 ItrOged1M,.;adopted..Vbyr-LAuwisn s::iiii*Vt-A(IheiguidAtiettIenuaciarai byl-tho:)' in various, pronouncements. , 4. Lthndd counsel for reSpOndents atinklil defended the impugned order by 'ag4'lif'ljeSpondents, as per School Cttlftee aad report,: of the Medial fidaltt'Vvrt.Teis than tireyvere14,01113,168rafed as juvenile by the 1efte trial Court 4 5 4. , 5 -.D 55: the iv-Viteitilve arguments t of The "leatnttl, einnisir the parties and for the Strut' and haVe--gottekIhratighl:The 'recard4ith their5 assistance. Peruttatof the record transpires that resparidentS,aetused'Avereearlier -tried' hy.Learae,dtrialt-..CburWi)wherein;,,they .Did not take The plea ,OfT;theirAtendet ,age .-nor objectedlow,theirqriallititthe ordinary court. It. Is the requirement ,of law,ithat,,accused vkconld -.'take such pleat at the ?Defy - initial staged aftertegisttatiottof thexase;:so-that thr,,,Anyetisgating, Officermay collect evidence in support thereof. The respondents have failed, to take this plea dining investigation 6f the, case likewise,, they did not Wather to agitate the Mine at the time of trial. It was for the .First time, when this plea was taken at the appellate stage and this Court, in the interest of justice. Remanded the case so that justice may not slip out handi;fzat'the test F-4 expeditious disposal and ,speedy justice. The learned trial Conk was ?Bilged to allow the complainant to meaningful participation during the inquiry proceedings about determination of age of the respondents. It aPfseat'S'-it6ii- the impugned order dated 1 12-201 L that the same was pals#A).Tbe back. Of and his "WAS) 4!?-41:14clkqiligAiRA, Wasi:-FaisC4!:01 was turned down. The
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aiTga741/IIMPv. (Sheikh Ahmed Farooq, J) IWIS4114741:cfmricival'Akig.944%.04., OOP; thS ettig1/4.014,11ft-d9RIP49#4,:whi513,;4N9 qcv9-;.vFF.R,Ple Aishk309g iaNAORtkno,3i01* ivmv4(r 40#4144,YA INN4 f9dWfdhlWAes.R9OF4ts-gc4scctr,-P. titcAliat %,Met,,OCA:SF,411!V4m4Rilp.timtfAcl. 9PitISMAYA-thetPtheN100coNge Miltiff0A kr, PfRv54.A. 419-,C01.4cirMitktkr7.4144.0M ti-xtSkote4.11RY-t,k4 iiTINSAIKelr11%3q9i41, ,; c.4P: AVY*RimR1,4iy,ISP-OP.: 240 PLI)0994,14PrAWC, 4-94:47.7.7kz,ckW.(010 *lifinSiRkS-AP4, IrciPIIMMtti4,kttg,c1A,the ..FictqFP#Rtic4k age 'appearing at page 78/ of the ibid vox; is reproduced hereinbelow:- WO? 1711; -'..1.1C0f3A?rCIML,NEPPIP411C'F',,` bris s'aPPDMili919f section 7 would be to .41k/a8 lead. Their 31L3a )itIv*Iw.gmiPP),-91..,,c19,clyrwmaryi:=0 accordance wickt,.11wil)Nyjsjiri of Qanun-e-Shahadat Order of 1984, with a right to Pthe.6therfiiiirty to tip:1Z '4-Aist. Theve?Acity'orthegenutheness the same and liken ,tc%,arriNea4 a iknslieti e*Mloit'Intteriti.i itiits6tt" --01,:-A--Iteidte6.1 to witattsci,-thki, dciiieiit is dsitd, it"cie044-1 pNiviwr idiV681'6ai ith iw by tendeliig B Ate salstigl% co-examination to'ffile*Voiffe"*W9? The'lVaffileif trini .1. Thepiccedre elegaivi.e4irtrelfieiff`Wf firobV'ilf411&%1 611i the ibi&i.6iteis-tikt ffitrebylroded'itii irnpngned order which is 1 iblation of the principle set by the ai:4;(68iirt'ilid'hiliiti' it sustainable 1101 illegal,. m 8. For the reasons discussediba , thif.Taiscittkon thR,(14npugned orders are set 4fi.0 Alookaqvistrk) rerna01", rii determination bf age of respondents ac oust& -brnvig4h64(orties1 0(J/cad their evidence, oral as 'melt. a&-clecvnientary ip accordance, with\ the Imoviginns.; otQaiiimozp Shh4datc'::Order.;.'i: 6)84r: v, by, 'it tietlingikl the \FA:lac ityxandi Igenuinenesslaizi the Nsammvin axerdanceAvithqave andythen wideticlw.The tpaitermiwithin-3:14-4pesi00 safiblivo I moitthIci positiyallrualit patties., shalt appearViaelose thziettnoodltriairCixtvt,ma '11-6-2.011.6.f In ImmiP613,3Awl 't,s1 nrit ctite44 Rf--13rF) PN',14-7.1t11,th PicksPeRk.: itEcr74.f4cA-411terdife;liRglitrO NAN9q1r,IPPY,s,..RbmvIlfigninith.Lkilms(1 tEki4 P'Yrt.\-FRAITA, t% tcj.h, TWOefAIINSYsikAtIcRIPIT14 *14 qKqcv:Vfmcill!MqPN cqKrii;rpe it 3t(li4 INT egefli,tyfith4.14,5, knovi2.Fi aka A purmictvi INE4c51,6qxliccs Ailtimia%3 3AQR, ARdt,,ATIfj ____ 9ot3IsAmIskfl.ssifirOg. 9rvf9rtITIkAk,s?v%diiwirY ff 0 '1,43 " 1.190.4bob %.PcA4s6,- glisAcAto0-,A e,...N40#'L-01(1k rfPrOc0,494N ellrAg4041). a) u-'.) !Al toek, iti:vp.vhsypiOy.)11(hmq Afrei1164, a Aw ,t,?_tnlAtiw ow) Vsot tlaroaIon;ta'4.* soli) .,ot),aollitt...14N--14) tug\ Itt's'aV-4M slt4514toscA 'm1113 noitulvimq..-4)2kYtticI, Z.M7Rvo, 1)MtviA5 ItwAr TntTs-1.141-4k. $A1Beforte,Shifthzado Wisaikko MakinniOadmi,) MilangithAivhadancklw% .1 cVSheikhAJma1wflq, ale WA L.!
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)i"31I3V'Ari .1:i ?Am bytArr4ollacM4TAVARCIAINI,i.' 4A) Ito 13)) N$.41c-xiyi\ia4rOtiu Afro V5t.e-lo two olrl Ast 143%h 4.i*P193k MPACYPV-goilif aft:NA' C pf[FK.)141q#E9FtwAt.IsfLIAR2R494 W'uNIT4114,STATS40tRespondtnt4noirmv !Id zow iviatryto (a) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Accused was neither specifically nominated by the complainant in the F.LR., nor in the course of his statement recorded during the trial---No identification parade was got conducted by the Investigating Officer after the arrest of accused, who was stated to be unknown---Accused was real brother of a co-accused, who was identified by the complainant at the time of occurrence, it was highly improbable, in circumstances, that the complainant could not have identified the accused---Features of accused, who was shown as the unknown accused in the F.I.R., were not mentioned therein--- Person, who was accompanying the complainant at the time of occurrence, and had seen the whole incident, had not been produced by the prosecution as witness during the trial---Another person who had transferred the dead body of the deceased from the scene of the crime to the hospital, had also not been produced as witness.-- Non-production of said two witnesses, who had witnessed the occurrence; and had direct knowledge of the incident had created a serious dent in the prosecution story---Motorcycle used by any accused at time of occurrence was not mentioned--- Out of three accused mentioned in the F.I.R., only two were alleged to have been armed with Kalashnikov-No allegation was levelled in the F.LR. Or the statement of the prosecution witnesses that accused was armed with a pistol/revolver at the ' time of occurrence---Case of two versions-Version which was favourable to accused, was. To be accepted---Presence of accused at time of occurrence had not been established beyond reasonable doubt by t the prosecution--- Accused, in circumstances, could not have been found guilty of causing the "qatl-e-amd" of the deceased along with his co-accused in furtherance of their common intention-Prosecution having failed to establish beyond reasonable doubt that accused had committed "qatl-e-amd" of deceased in furtherance of common intention of all accused, conviction and sentence awarded to accused under S.302(b), P.P.C. By the Trial Court, was set aside---Accused was acquitted of the charge and was released, in circumstances. [pp. 2085, 20871 A, B, D & E Muhammad Akram v. The State 2012 SCM R 440; Mir Hazar v. The State 2002 PCr.LJ 270; Mst.Dur Naz and another v. Yousaf and another 2005 SCM R 1906 and Muhammad Sharif v. The State 2012 SCM R 419 ref. Khan Afsar and 2 others v. The State 2011 YLR 991; Mir Hazor v. The State 2002 PCr.LJ 270; 2011 PCr.LJ 925 rel. (b) Penal Code (XLV of 1860)--- ----S. 34---Common intention---Ingredients---Common intention-Generally involved an element of common motive, preplan preparation, and actual commission pursuant to such plan- Main ingredients of S.34, P.P.C., were that a criminal act must be done by several persons; that criminal act must be done to further the common intention of all and that there must be participation of all persons in furtherance of the common intention. [p. 20871 C Muhammad Qahir Shah for Appellant. Abdul Wasey Tareen, Prosecutor. General Balochistan for the State. {{BLUR PAGE}} Nadir Ali Chalgari for the Complainant. Date of hearing: 21st May, 2012.
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JUDGMENT ' SHEIKH AHMAD FAROOQ, J.---Through the instant Criminal. Appeal, the appellant/Himmat Ali son of Ghulam Nabi has challenged the judgment dated 25-7-2009, whereby the learned Additional Sessions Judge, Panjgur, has convicted him under section 302(b), P.P.C. And sentenced him to death along with an order for payment of Rs.100,000 as compensation to the legal heirs of the deceased as provided in section 544-A, Cr.P.C. And in default whereof, to further undergo six months' S.1. However, benefit of section 382-B, Cr.P.C, was extended to the convict/ accused. 2. The learned Additional Sessions Judge Panjgur has also sent Murder Reference No. 1-Q of 2010 for confirmation or otherwise of the sentence of death imposed on the appellant Himmat Ali. Both the Criminal Appeal No.33-Q-2009 and the Murder Reference No.1-Q-2010 are being decided through this, single judgment. 3. Succinctly, the prosecution story as narrated in the F.I.R. P/1-A) is that on 20-4-2009, the complainant along with his cousins Basit and Waleed was travelling from Panjgur to Khudabadan in a vehicle/cultus of silver colour which was being driven by Basit. At about 7-00 p.m. The accused along with his absconding companions crossed the vehicle of complainant party while boarded on a vehicle Corolla of black colour and stopped them. The complainant identified two of accused persons as Fateh son of Ghulam Nabi and Amir son of Muhammad Anwar, who were armed with Kalashnikov, the third unknown accused was of middle height, who coujd be identified by the complainant on his appearance. The accused directed the complainant party to get down from the vehicle and hand over the same to them. The accused/Amir and third unknown accused pushed back the complainant and Waleed, while Basit was resisting the accused/Fateh. The complainant party tried to escape, whereupon the accused made two fires: In the meanwhile, accused/Fateh fired a bullet which hit Abdul Basit and he fell down and the accused took away the vehicle, (Cultus) while the dead body of Basit was brought to Hospital in the vehicle of one Muhammad Sharif. 4. After completion of investigation, a report under section 173, Cr.P.C. Was submitted in the learned trial Court for taking cognizance of the offences. Thereafter the accused/present appellant was charged by the learned trial court, to which he did not plead guilty and claimed to be tried. 5. During the trial, the prosecution in order to substantiate its allegations and to prove the charge, produced nine witnesses, in addition to tendering documentary evidence. 6. Statements of P.Ws. Have been discussed in detail in the judgment of the learned trial court. However, the gist of the material evidence of the prosecution relevant for the decision of the present appeal is being reproduced below:-- ' P.W.11/ Muhammad Yonnis is the complainant. He reiterated the version given in the F.I.R. He is {{BLUR PAGE}} -1-14 YEATOA:14.WRETORTER an hut g cross-exmlned .:byz.....The learned , counsel. For the accused..Despite:41 opportualty to ydo ,so in ,his the coruplainant,::has further :stated that ope ,Ptacie of rau9SFYT.F.PY .494 tilf.Y.AraPp9rted the lac4e490 Liclf11A1411 B454., to the P.V:2/Atichrl'Waheed, chance !It W1rti"W-iSP)Siethedidill0.01041,- was.Fi liitCn 1i P4 bal;' Anipi a ts t-dppel [voirATV -:::aged-,,abotat 29 years andlound the following injuries on hit"tiarsiMV!' INJURIES ...
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(1) Bullet tatitirice ft:dm left side of chest, on upper axea, of heart laterally arid."er1it from back of left side scapula POsterforlr'r i637: (2) A. Bullet eatitheenktkerallY0iieloki the right k cubitelloirittwintlielboW joinCandiekit oalSatite are RIP:44911: OreSb 000,901 ft .i.:0irJ3e:fi v9J dv. !N%Tettikififttkiat t f) N 10 Basit due to which he fell 'WV) #TBS ) 1 , tgWAF'1:1S. ; 194abadan. #TBE #TBS Further aepose0 that Fgea , . s,ap Muhammad Shareef 59ehtl?Er -; place of occurrence wlto 41iftes4 rthC dead body of Abdul " hospital. #TBE #TBS and, all the culprits fled from hc eeng4 crime along withyMe..4. #TBE P.W.3/Asmatullah, who was ofq or bus - - -icetirripanyi0g 2/Mdtt1 voiligoT'A the time ,st'c4creii',4ei r. w .2 on alt material po1nfre also identified the aceused/ K1.1311n4t,,, who was ,,p.,rssent, in Me f:g1.1 .k5t.NE:15.::t115:,:,ti,Te::9,:deRPN-.0.g.-sogi) Al.:to sM.e.TF,147,,c41 boau5t .061:to:131},,W.4/1%4eetti" ltnelf.t'ideiltifieatidti'rtreMa-Of MOtoieyife';'1' whielt iliWiS/DitformstSMatiliddlit'4 had ...,eitairtined dead-46,9f rof Basit FlajittNinhaitaiiradislaeem .61-S:8E iW:i qii; 97, tegai certificate which Was' on record as Exh.13/5-A, .t.11 A I e: ree'oVei$,, (W:?/.51A. Wheiebyllie itiii . 45- " ,ere' en Tntoupo''S's$SS'ioa:'"rti ,..Rf t rOT,r;', ''13-1P1W7/Mtihanittnrid:::11aShiril- is !3 zwitneof,,..Ttle'.,,rizetrietiy.0i) five.; empties of KalashnikOWSMO froth the scene of crime; vide memo n' Itii;:., .'.1 :} . ", '-.'lf_ ' d '4' W-8/Javed:i:!(.1Carinti.! CitiEftabIV-:. griiiltAs4o.374 i,..,theArittiess 'of,-- ikeeti4ery-) . E Iii montaEtJP1111-AEiti respeet,-.6f black ari if iknOlouritnetoreyelg/CD-70iKJ::::',-;i.:.:41:-yi i't.i.,-,e.t .,1,1)e.j.,..t.i.7!.:-:::,,j 94T ulffn?.411111'ii6 .:.4iF. -!)1-11 10 ,.11.1-.OF ri,`,Wft'g*4-W, Pffic.74)FiVAiy)
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.c... "*1 .11.11kS He-Sof "That todk..Vn,rion' s.. !I(11!Fi A 11SP?Yi.C.St!g4.99 111 1,1, owfatISiliiiiS 4'14., ilifM[AScTliFY ni#11 ,-1-..,c,iiii5j1IPPIR.),z5u4$4P0.1nOTY.:..v.FicTAJ?Th.f.,E, scene or the crime and the arrest of 2012] - . Himrnat Ali v. State (Sheikh Aliniad FaroOq, J) the accused/Himmat Ali. He also - " recovered one revolver along with four live bullets and a motorcycle 70CD from the house of the deemed'. He produced the site ')- plan -of the place of occurrence Eh. P19-A. He clarified that the post ritortern of Basit Ali wai not- got conducted on the ' request of 'hi S legal heirs. He' placed on record the report Of 'FOrthisic ' Science LaboratorY as ,4 4,1 - 7.;:AfLt,elosUre.Oithee evidence, of the ,PFP.Secn*U, ,,statement, Of "the- ,accusedi prent appellant was ,trecordedi under' sec.Oon 34 Cr, PC. The preSentappellant. Deniedothnfiroseentioniversion andelaimed. Innocence. ;Iiresponse: .cruciaL lusalionlyogarding his involvement in:this, case, he replied as follows:-- Question:, - Why the complainant odged P.LR. Against you? Answer: "He did not lodge F,I.R. against me" Question: Why the prosecution' witnesses deposed against you? Answer: ' ' "FaIielY deposed" P0 :Wt to say umi sornething,else? innocent. Wrongly implicated.'At the 'time of Rccirrrerice, I was ; at 0qicas4c49Wk 40.1 ''Tlie'acletitedililiiiniiat Ali also go'' recorded'hif-Stkellieetihdifiection 346('*)',1', Cr.P'.C.' and thrOdUced''`thiee defence' witnesses in disproof of the charges/ allegations made against 13:.W.4 and D,W.2 deposed that the aCcusedillitturiat Ali was playifiti cards, With them: on 20-4- 2009ItOrtii3:43044.411: to 8-00/9-00 p.m.' in the 1te134iftlitilant Samar situated- at MawaSh7Clitii4k''TheY denied the involvement Of4tetiiketliffitnfriat Ali in the murder of AbdtiFBiet. D.W.3., stated that acousediginAlat Ali was arrested on 14,-,2009 at 40,9P1100 a. In. , while he was .Going. a2hatiae after attending a rnar,riage,ceTeny. .Skie denied that the police conducted any Tait! The,house of the accused.On. 1475-2009 and recovered any .Article. 8. Upon conclusion of tfie'fi*, the learned trial court found the 'preent appellant guilty of committing itte!Fatilia: Of the murder of Abdul Bash in ftirtherA0 of common intention, falling within the mischief of seCtion'302(b),Ii:P.d.,-;:anAltfink convicted and sentenced him as mentioned in paragraph No'.1 of this judginent: Being aggrieved by. The judgment. :, dated 254,..,2009; the -appellant; has;challenged:the..Legality and validity of 10,..cPnvictiw.And- sentence through the instant appeal before this Court whereas the learned Additional; Sessions Judge Panignr, has sent, murder reference ft& cfintleinationi of;the5sentence Of death's awardedftel-tbe appellant. .4.,q.4.-r-foe 10. Learned counsel for the a0eil4 contended that the. Prosectrii.99;"?, Miserably failed to provefits- _,caSe. Any shadow of doubt. The cbin-414034; not mentioned the name of the 060 appellant in the F.1. 1-lowe?Fer aftec registration, of case sr.w.4t e.
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and P.W.. Asinatuhah had nominated {{BLUR PAGE}} 'the appellant in their statements under section 161, Cr.P.C. Before the I.O. He argued that it is a case of two versions, the first version was furnished by the complainant in the shape of F.I.R. As well as in his statement as P.W.1 before the learned trial Court, wherein he nominated two accused while the third accused was unknown, whereas the second version, brought on record by P.W.2/Abdul Waheed and P.W.3/Asmatullah, who are chance witnesses, is totally different from the version of the complainant. According to P.W.2 and P.W.3, the appellant had given Butt blows of Kalashnikov to the deceased but no recovery of Kalashnikov was effected by the police. Furthermore, only two injuries were shown in the MLC Exh.P/5-A, and except those injuries, no marks/signs of any injury or violence was mentioned by the doctor/P.W.5 in his deposition. He contended that the features of unknown accused were not mentioned in the F.I.R., and after the arrest of the appellant, neither the identification parade was conducted nor there is anything on record that the appellant is of middle height. He further argued that according to the prosecution story the most important witness is Waleed but he was not produced as witness before the learned trial Court although he was mentioned as eve-witness in the F.I.R. No role was assigned 'to the appellant regarding firing upon the deceased. The only role attributed to the appellant by P.W.2 and P.W.3 was that he had given some Butt blows of the Kalashnikov to the deceased. He asserted that the principal accused namely Fateh Muhammad, who was assigned the role of firing, is real brother of the present appellant, therefore, the appellant has been falsely implicated in this case. He submitted that the evidence of the prosecution is full of contradictions/discrepancies regarding the number of accused persons as P. W.1/ Muhammad Younis/complainant nominated in the F.I.R. Three accused, namely.Fateh Muhammad, Amir along with an unknown accused, whereas P.W.2/Abdul Waheed and P.W.3/Asmatullah stated about five accused. P.W.2 and P.W.3 claimed that they came to the police station on the same day and got recorded their statements but the I.O. Stated that he nominated the appellant as accused in police Zimni dated 11th May, 2009 whereas F.I.R. Was recorded on 29-4-2009. He maintained that the statements of P.W.2 and P.W.3 are highly improbable. He claimed that the ocular evidence is not only self-contradictory but also did not inspire confidence. He asserted that the impugned judgment is the result of non-reading and misreading, of evidence on record and the conviction recorded thereon cannot be maintained. He pleaded that the appellant may be acquitted. 11. The learned counsel for the appellant in support of his arguments has relied upon the case-law reported as:-- (i) 2012 SCM R 440 (Muhammad Akram v. The State (ii) 2002 PCr.LJ 270 (Quetta) Mir Hazar v. The State) (iii) 2005 SCM R 1906 (Mst.Dur Naz and another v. Yousaf and another and (iv) 2012 SCM R 419 (Muhammad Sharif v. The State). 12. Conversely, the learned counsel for the complainant submitted that two P.Ws. Namely Abdul Waheed/P.W. 2 and Asmatullah/P.W.3 are independent witnesses and they nominated the accused in the instant case. There is no enmity between the complainant and the appellant, therefore, there is no question of false implication of the appellant. Motorcycle was present on the spot at the time of occurrence which was recovered from the house of the appellant. He maintained that the appellant along with his co-accused, with their common intention, committed murder of the deceased, therefore, they all are equally involved in the offence and section 34, P.P.C. Is attracted in the instant case. He further submitted that initially the appellant was not nominated in the F.I.R. But soon after the occurrence, two witnesses namely Abdul Waheed/P.W.2 and Asmatullah/PW.3 nominated the appellant in their statements recorded by the I.O. 13. The Prosecutor-General, appearing for the State, has adopted the arguments advanced by the learned counsel for the complainant and supported the impugned judgment.
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14. We have heard the learned counsel for the parties and evaluated the evidence as well as the documents available on the record minutely. 15. Admittedly the present appellant was neither specifically nominated by the complainant in the F.I.R Exh.P/1-A nor during the course of his statement which was recorded as P.W.1 during the trial. No doubt the complainant in addition to two accused namely Fatah son of Ghulam Nabi and Aamir son of Muhammad Anwar did implicate an unknown person of middle A height but the complainant in the F.I.R. Exh.P/1-A categorically stated that he would identify the unknown accused as and when produced before him. However,…
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