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Petitioner: Dad Muhammad VS Respondent: The State and another
Court Name: Balochistan High Court Judge(s): Rozi Khan Barrech, Naeem Akhtar Afghan (C.J) Title: Dad Muhammad vs The State and another Case No.: Criminal (ATA) Appeal No. 99 and Murder Reference No. 2 of 2020 Date of Judgment:2022-07-07 Reported As: 2023 YLR 1595 Result: Appeal allowed
JUDGMENT
JUDGMENT ROZI KHAN BARRECH, J.---The appellant Dad Muhammad, son of Khuda-e-Dina, having been involved in case FIR No. 174/1995 dated 26.11.1995 registered under sections 302, 324, 147 and 149, P.P.C. at P.S. Civil Line Quetta District Quetta, was tried by learned Special Judge Anti-Terrorism Court-II, Quetta (hereinafter the "trial court") and on completion thereof by means of the judgment dated 10.04.2020 ("impugned judgment") passed in Special Case No.29/2018, the appellant was convicted and sentenced in the following terms. "31 ....................in view of above discussion and findings arrived at Point No.1, accused person Dad Muhammad son of Khuda-e-Dina is convicted, under section 6 (2), (a) of Anti-Terrorism Act, 1997 and sentenced under section 7(a) of Anti-Terrorism Act, 1997 to death as Tazir, with payment of fine of Rs. 400,000/ (Rupees Four Hundred Thousand only) as compensation to legal heirs of deceased persons @ Rs.100,000/- (Rupees One Hundred Thousand Only) for one deceased as provided Under Section 544-A of Cr. P. C. and in default thereof to undergo further imprisonment for six months (SI). i) The accused person is also convicted Under Section 6(2), (b) of Anti-Terrorism Ad, 1997 and sentenced Under Section 7(c) of Anti-Terrorism Act, 1997 to suffer imprisonment for ten years (R.1) and to pay fine of Rs.100,000/- (Rupees One Hundred Thousand only) in default of which he shall suffer for six (06) months S.I. " 2. Feeling aggrieved, the appellant, Dad Muhammad, son of Khuda-i-Dina, filed Criminal (ATA) Appeal No. 99 of 2020, assailing his conviction and sentence. The trial court submitted Murder Reference No. 02 of 2020 under section 374, Cr.P.C for confirmation or otherwise of the sentence of death awarded to the appellant. We intend to dispose of the aforesaid appeal along with the murder reference through this single judgment.
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3. Precisely, facts of the case as divulged from Fard-e-Bayan (Ex.P/3-A) of complainant Moula Bakhsh, son of Pir Bakhsh (not produced before the trial court as a witness) are as under: "I reside with my children and relatives at Mengal Abad Quetta and have a shop at Joint Road Sarawan Fish House. My brother Shah Muhammad, nephews Qalandar Bakhsh and Muhammad Ramzan and Arbab used to work at my shop, whereas Abdul Sattar Mastoi was also a laborer in the shop. Today, i.e. 26.11.1995, I was present at my house when I received information that at 9:30 am firing was made on my shop. On this information at 10:50 am, I immediately reached civil hospital Quetta, where I found my brother Shah Muhammad, nephews Qalandar Bakhsh and Muhammad Ramzan, as well as laborer Abdul Sattar Mastoi lying in a pool of blood; that my brother Arbab was lying unconscious in injured condition. There were firearm injuries on the person of the deceased and injured Arbab. On account of the murder of SDO Peera Khan, we had enmity with Zulfiqar alias Bhuttia, Ali Muhammad, Muhammad Waris, Dad Muhammad, Wali Muhammad alias Dilo all sons of Khuda-e-Dina by caste Peechuha and due to such enmity, we had left Chattar Naseerabad and were residing in Quetta. The aforesaid accused persons have committed the above-stated crime either on their own or with the help of others which is unknown. I am gathering infotmation on my own, and whenever I get any information, I will bring the same on record. The above-stated accused persons, on account of the previous enmity either on their own or in connivance with others, have unjustly committed the murder of my brother, nephews and laborer of my shop." The report of the complainant was reduced into Marasla (Ex.P/3-A) by the SHO, who also prepared injury sheet and inquest report of the deceased and handed over the dead bodies to Dr. Fareed Ahmed (PW-4) Medical Officer Sandman Provincial Hospital Quetta, who examined the deceased and prepared the reports (Ex.P/4-A to Ex.P/4-D), according to which the deceased received injuries on their bodies by means of firearms. 4. After registration of the formal FIR (Ex.P/3-B), the investigation of the case was entrusted to Muhammad Ilyas Jaffar DSP (PW-3). During the investigation of the case, he visited the place of occurrence, where he prepared a site plan (Ex.P/3-O), and collected blood-stained earth of the deceased and injured from the spot (Ex.P/3-J to Ex.P/3-N). He took into possession thirty bullet empties of Kalashnikov through a recovery memo (Ex.P/3-Q). He reached the civil hospital, and there, he took the blood-stained shirts of the deceased into possession through the recovery memo (Ex.P/3-R). He prepared the inquest reports of the deceased (Ex.P/3-D to Ex.P/3-F). After medical examination of the deceased and injured by the doctors, the investigation officer handed over the dead bodies of the deceased to their legal heirs after obtaining receipts (Ex. P/3-G to Ex.P/3-H). 5. On 29.11.1995, further investigation was conducted by Muhammad Tariq SI (PW-6). During the investigation on 30.11.1995, he recorded statements of the eye-witnesses Malook (PW-2), and Juma Khan (PW-3) under section 161 Cr.P.C. He arrested accused Muhammad Waris and Ali Muhammad (acquitted accused), and Zulfiqar alias Bhuttia (convicted accused) from Naseerabad. He obtained death certificates of the deceased from Sandeman Provincial Hospital Quetta and also recorded the statement of injured Arbab under section 161, Cr.P.C. 6. On 05.06.1996, the then investigation officer prepared and submitted a challan before the court of Special Judge under the Suppression of Terrorist Activities Act Balochistan Quetta (in short, "STA court"). The appellant Dad Muhammad and co-accused Wali Muhammad remained absconders, while co-accused Zulfiqar alias Bhuttia, acquitted accused Muhammad Waris and Ali Muhammad faced trial. A formal charge was framed against the convicted accused Zulfiqar alias Bhuttia and acquitted accused Muhammad Waris and Ali Muhammad, to which they did not plead guilty and claimed trial, whereas a charge was framed against the absconding accused Wali Muhammad and
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appellant Dad Muhammad in their absence as it was a trial in absentia to their extent and it was presumed that they denied the charge. The prosecution in order to prove its case before the STA court, produced Arbab Khan as PW-1, Malook (PW-2), Juma Khan (PW-3), Dr. Muhammad Amin Mengal (PW-4), Abdul Ghani (PW5), Nabi (PW-6), Dr. Fareed Ahmed (PW-7), Khudaidad (PW-8), Abdul Jabbar (PW-9), Muhammad Tufail (PW-10), Muhammad Ilyas Jaffar DSP (PW-11) and Muhammad Tariq SI (PW-12). 8. The appellant and co-accused Wali Muhammad alias Dilo being proclaimed offenders, were represented in Special Case No. 51/1996 by Syed Nazeer Hussain Shah, as Advocate appointed by the STA court, and he cross-examined all the witnesses on behalf of the absconding accused, i.e. appellant and co-accused Wali Muhammad alias Dilo. On completion of the trial proceedings of Special Case No. 51/1996 vide judgment dated 10th September 1997, the STA court acquitted the accused Muhammad Waris and Ali Muhammad while the appellant Dad Muhammad and absconding accused Wali Muhammad alias Dilo were awarded the death penalty under section 302(b), P.P.C. in absentia with fine of Rs.200,000/- to be paid to the legal heirs of the deceased. The appellant and absconding accused Wali Muhammad alias Dilo were also convicted and sentenced in absentia under section 324, P.P.C. to suffer two years' R.I with a fine of Rs.5000/-. The co-accused Zulfiqar was awarded a conviction of five years under sections 302 and 109, P.P.C. with a fine of Rs.5000/-He assailed his conviction and sentence through Criminal Appeal No.09/1998 before this court, and later, on 24.04.1998, the same was dismissed, having not been pressed. 9. On 10.04.2014, the appellant Was arrested by Naseerabad police for an offence under section 13- e of the Arms Ordinance, 1965. He was also arrested in the instant case and shifted to Central Jail Mach. The appellant challenged his conviction and sentence awarded in absentia by the STA court by filing Criminal Appeal No. 32/2015 before this court, which was accepted vide judgment dated 19th March 2015, whereby after setting aside the judgment dated 10th December 1997 passed by the STA court to the extent of the appellant, the matter was remanded by this court to the court of Special Judge Anti-Terrorism Court-II, Quetta for de novo trial of the appellant. 10. The appellant was put on de novo trial in Special Case No. 29/2018 before the trial court. The charge was read over to the appellant by the trial court on 3rd June 2015 under sections 302, 324, 147 and 149, P.P.C. read with Section 7 of the Anti-Terrorism Act, 1997 (hereinafter the "Act") to which the appellant did not plead guilty and claimed trial. 11. At trial, the prosecution produced Arbab (PW-1) injured/eye-witness, Abdul Nabi (PW-2), who is the witness of circumstances, Muhammad Ilyas Jaffar (PW-3), who conducted an investigation of the case. Dr. Fareed Ahmed (PW-4), who examined the dead bodies of the deceased, Dr. Noor Baloch (PW-5), who produced a medical certificate of the injured Arbab, Muhammad Tariq SI (PW- 6), the second investigation officer of the case and Javed Akhtar (PW-7) who submitted supplementary challan against the appellant. 12.' When examined under section 342 Cr.P.C., the appellant negated the allegations levelled against him by the prosecution. The appellant opted not to record his statement on oath as envisaged under section 340(2), Cr.P.C. He did not produce any evidence in his defense. 13. Before pronouncement of the judgment, the complainant submitted an application through Special Public Prosecutor under Article 47 of Qanun-e-Shahadat Order, 1984 before the trial court for considering the statement of the witnesses Malook, Juma Khan, Abdul Ghani and Muhammad Tufail recorded by the STA court in Special Case No. 51/ 1996 as evidence against the appellant in Special Case No. 29/2018 on the ground that the witness Malook died on 5th October 2017, the witness Juma Khan has died on 3rd August 2011, the witness Abdul Ghani has died on 3rd February 2015 and the witness Tufail Ahmed was not traceable.
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The death certificate of the witnesses Malook, Juma Khan and Abdul Ghani were produced by CW- 3 Asif Rasheed SI/Investigation Officer on 6th March 2019 before the trial court. 14. After hearing the learned counsel for the parties as well as the learned Special Prosecutor, the trial court accepted the application of the complainant vide order dated 24th April 2019 and decided to consider the statements of Malook (PW-2), Juma Khan (PW-3) and Abdul Ghani (PW- 5) recorded in Special Case No. 51/1996 as evidence against the appellant in Special Case No. 29/2018. Feeling aggrieved from the order dated 24th April 2019, the appellant filed C.P. No. 745/2019, and the same was dismissed on 18.12.2019. After hearing arguments advanced on behalf of the parties while evaluating the evidence on record, the trial court found the version of the prosecution proved beyond the shadow of reasonable doubt. Resultantly, vide judgment dated 10.04.2020, the trial court convicted and sentenced the appellant. A detail of the sentence has already been mentioned in the earlier part of this judgment. Hence, this appeal and connected murder reference. 15. The contention of learned counsel for the appellant precisely is that there was an unexplained delay of one and a half hours in filing the FIR, which led to its concoction; that the whole case is fabricated and false, and that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence. Learned counsel for the appellant in support of this appeal further contended that the story of the prosecution mentioned in the FIR, on the face of it, was highly improbable, and the reason assigned by the eye-witnesses for being present at the place of occurrence was without any justification. He further contended that when Arbab Khan appeared before the STA court as PW71, he was declared a hostile witness, but subsequently, when he appeared before the trial court, he nominated the accused and made dishonest improvements in his statement deliberately and intentionally. He further argued that the statements of the eye-witnesses were not worthy of credence, and the statement of the injured witness was recorded with a delay of five months, and the statement of the other so-called eye- witnesses were also recorded with a delay of ten days. The learned counsel for the appellant finally submitted that the prosecution had totally failed to prove the case against the accused beyond the shadow of a doubt. 16. On the other hand, the learned APG assisted by the learned counsel for the complainant vehemently controverted the arguments advanced by the learned counsel for the appellant and submitted that the time, date, mode and manner of the offence were successfully established by the prosecution through the eye-witnesses and the injured/witness and despite lengthy cross- examination of the aforesaid witnesses by the defense there is no major contradiction in their statements to disbelieve them. He has further argued that, indeed it is the quality of the evidence which is required for the prosecution to establish the guilt of the accused and not the quantity of the evidence. He further argued that the medical evidence also corroborated the statement of the eye-witnesses. Learned APG contended that there was no occasion for the prosecution witnesses to substitute the real offender with the innocent in this case. Lastly, he prayed for the rejection of the appeal. 17. After cautious analysis of the evidence on record and considering the pros and cons so put forth by the learned counsel for the parties, we have gathered that the prosecution's entire case rests upon ocular evidence, medical evidence as well as investigation besides other attending circumstance's. The unfortunate episode of murder of four persons for no valuable purposes a drastic and unbearable trauma, having a stigmatic effect upon their family members and society. However, the courts have to decide the fate of a crime committed by a felon on the basis of impeachable evidence and not at the cost of emotions.
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18. As far as the merits of the case are concerned, we have observed that the prosecution produced Arbab Khan (PW-1), Malook (PW-2) and Juma Khan (PW-3) in support of the charge, but all the above witnesses are relatives (nephews) of the complainant; therefore, for safe administration of justice, their evidence will have to be appreciated with care and caution. No doubt, the evidence of the related witnesses cannot be discarded on the ground of its being related to the victim, but if it is found that the testimony of the related witness got no corroboration from attending circumstances of the case or the conduct shown by them at the time of occurrence or just thereafter as such, which cannot be expected. from a prudent person, then under such circumstances the evidence furnished by related witnesses cannot be easily discarded. At the touchstone of the above, we now take into consideration the testimonies furnished by the above witnesses in the case. 19. In the case in hand, the alleged occurrence took place on 26.11.1995 at 9:30 a.m., and the FIR was lodged on the same date at 11:00 am after one and a half hours of the occurrence, and the accused/appellant and co-accused were nominated on the basis of suspicion. The complainant, Moula Bakhsh son of Pir Bakhsh, was not produced before the court as a prosecution witness. The trial court issued the summons as well as warrants of the complainant, but despite that, the complainant was not traceable. It is worthwhile to mention here that the complainant Moula Bakhsh son of Pir Bakhsh, is the brother of the deceased Ramzan and uncle of the other deceased except deceased Abdul Sattar. He is not an eye-witness of the occurrence. According to his report on the day of occurrence, i.e. 26.11.1995, he was present in his house when he was informed about the incident which had taken place at his shop, i.e. Sarawan Fish House joint road Quetta. The complainant in his report was not sure about the assailants who had committed the said offence. Perusal of the FIR shows that at the time of registration of the FIR, the complainant was not even aware about the assailants, that is why he mentioned in his report that the crime had been committed by the nominated accused either on their own or with the help of others is yet to be known. 20. The complainant had deliberately avoided appearing before the court in the first and second rounds to the extent of the appellant. It is worthwhile to mention here that the basic purpose of FIR is not meant to decide guilt or innocence but to activate the law enforcing agencies to immediately move for collection/ preservation of evidence. The first information report is not substantive evidence, and a statement of first information, who is not an eye-witness cannot be treated at par with the direct evidence of an eye-witness, but the same may be used as corroborative evidence. In the case in hand, the evidence of the complainant was imported because the complainant did not mention in the FIR who informed him about the occurrence, and it is still shrouded in mysteries that who had told the names of the culprits to the complainant. 21. We have also noted that Arbab Khan (PW-1), who appeared before the STA court in the first round, recorded his statement before the court on 19.10.1996 as PW-1. In the said statement, he stated that the assailants were three in number and were with muffled faces. The said witness did not mention the name of any accused in his previous statement recorded before the STA court; however, when the appellant was arrested the statement of Arbab Khan was recorded again as PW-1 on 14.07.2015, wherein he stated that five persons came to the shop. The accused/appellant Dad Muhammad, Wali Muhammad alias Dilo were armed with Kalashnikovs and made firing upon him and the deceased. 22. We have also observed that in the contents of the FIR the complainant stated that on account of the murder of SDO Peera Khan, they have enmity with Zulfiqar alias Bhuttia, Ali Muhammad, Muhammad Waris, Dad Muhammad, Wall Muhammad alias Dilo all sons of Khuda-e-Dina by caste Peechuha and due to such enmity they have left Chattar Naseerabad and are residing in Quetta. It is further mentioned in the FIR that the above-stated crime has been committed by the above-
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stated accused either on their own or with the help of others is yet to be known; that he is gathering information on his own and whenever he gets any information, same will be brought on record. It is further contended in the FIR that the above-stated accused persons, on account of the previous enmity ,either on their own or in connivance with others have committed the murder of the brother of the complainant, nephews and laborer unjustifiably. 23. It was stated earlier that the complainant was not an eye-witness to the occurrence. It has also come on record that the dead bodies of the injured 'were shifted to the hospital by the police. On the day of occurrence, Arbab Khan (PW-1) neither told the name of the accused to the police nor to the complainant. According to the medical certificate of the injured/PW-1 (Ex.P/3-A), he was discharged on 10.12.1995 from the hospital. His statement was recorded under section 161, Cr.P.C. on 26.03.1996 after a delay of four months. When he appeared before the court as PW-1 in the trial of the appellant in absentia on 09.1.1996, he also did not mention the name of the appellant in his statement, and when after nineteen years, he appeared before the trial court as PW-1, he named the accused. PW-1, Arbab Khan had contradicted his own statement because when he appeared as PW-1 in the first round, he stated that the assailants were three in number with muffled faces. Since the accused were booked in the instant case in the FIR on the basis of suspicion, therefore, the improvement made by PW-1 Arbab Khan was substantial and was made with regard to a crucial aspect of the prosecution evidence. By improving his previous statement, Arbab Khan (PW- 1) impeached his own credit. Article 151 of the Qanun-e-Shahadat Order, 1984 provides as under:-- "151. Impeaching credit of witness. The credit of a witness may be impeached in the following ways by the adverse parry, or, with the consent of the Court, by the party who calls him: (1) by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be un worthy of credit. (2) by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence. (3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted." 24. Arbab Khan (PW-1) introduced a dishonest, blatant and substantial improvement to his previous statement and was duly confronted with his former statement; hence his credit stands impeached and cannot be relied upon on being proved to have deposed with a slant, intended to mislead the court. It is held in the case of Amir Zaman v. Mahboob and others (1985 SCMR 685) that the testimony of witnesses containing material improvements is not believable and trustworthy. The august Supreme Court of Pakistan, in the case of Muhammad Arif v. The State (2019 SCMR 631) has enunciated the following principle: "It is well established by now that when a witness improves his statement and moment it is observed that the said improvement was made dishonestly to strengthen the prosecution, such portion of his statement is to be discarded out of consideration. Having observed the improvements in the statements of both the witnesses of ocular account, we hold that it is not safe to rely on their testimony to maintain conviction and sentence of Muhammad Arif (appellant) on a capital charge." 25. The instant case was pending before the then STA court. The appellant Dad Muhammad and co-accused Wali Muhammad alias Dilo remained absconders at the trial before the STA court. The prosecution produced witnesses, including Malook as PW-2 on 09.10.1996 and Juma Khan as PW-3 on 21.11.1996. 26. On 10.06.2014, the appellant, Dad Muhammad, was arrested when the case was fixed for final arguments before the trial court; learned Public Prosecutor submitted an application under Article 47 of Qanun-e-Shahadat Order, 1984 read with Section 512, Cr.P.C before the trial court for considering the statements of said witnesses recorded by the STA court in Special Case No. 51/1996
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as evidence against the appellant/accused in Special Case No. 29/2018 on the ground that the witnesses Malook and Juma Khan have died. The trial court accepted the application of the learned Public Prosecutor on 24th April 20109 and decided to consider the statements of the above two witnesses recorded by the STA court in Special Case No. 51/1996 as evidence against the appellant in Special Case No. 29/2018. 27. The provisions of Article 47 of Qanun-e-Shahadat Order, 1984 are an exception, and the testimony of a witness becomes a legal piece of evidence; therefore, much care and caution are needed to be exercised by the court before placing reliance on it, particularly in the case of capital charge. 28. Malook and Juma Khan stated in their statements before the STA court that they were laborers with the complainant at his shop situated at joint road Quetta. On the day of occurrence, the accused/appellant, along with co-accused armed with Kalashnikovs, made firing upon the deceased and injured Arbab Khan, who received injuries. Both the above witnesses were highly interested and inimically deposed against the appellant. The first reason for disbelieving them is that their presence on the spot was unnatural because had they been present at the spot, they would have received some injuries from the shots fired by the appellant. It appears that they have tried to suppress their interestedness. Both the above witnesses did not justify their presence at the place of occurrence. Suppose the statements of the above witnesses are believed to be true; in that case, the question arises as to why and how the appellant and co-accused spared them and did not try to kill them when they could have easily killed them because they were empty-handed and at their mercy, coupled with the fact that they could depose against them as eye-witnesses being relatives of the…
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