Mullah Mahir V. The State,

2024 Y L R 1432 [Balochistan (Turbal Bench)] Before Naeem Akhtar Afghan, C.J. and Sardar Ahmed Haleemi, J MULLAH MAHIR ---Appellant Versus The STATE--- Respondent Criminal Appeal No. (T) 06 of 2022, decided on 7th October, 2022. (a) Penal Code (XLV of 1860) --- ----Ss. 302 & 324--- Qatl-i-amd, attempt to qatl -i-amd---Appreciation of evidence --- Accused/appellant was nominated in the FIR with specific role of firing with pistol and murdering the deceased, and injuring the complainant ---Prosecution evidence revealed that the assertion of the complainant against the accused/appellant was corroborated by the duly exhibited Medico Legal Certificates (MLCs) produced by the concerned prosecution witness - --All three eye- witnesses (who happened to be friends) remained consistent on all material facts when adducing evidence as prosecution witnesses while fully supporting the prosecution version--- Said witnesses had not been shaken by the defence ---Presence of the (said) eye -witnesses at the spot had not been disputed in cross -examination and their evidence was further corroborated with statements of yet three more prosecution witnesses --- Crime weapon was recovered from the accused ---Circumstances established that the prosecution had proved its case against the accused beyond shadow of reasonable doubt through coherent and confidence inspiring evidence ---Appeal was dismissed accordingly. (b) Penal Code (XLV of 1860)--- ----Ss. 302 & 324---Qatl -i-amd, attempt to qatl -i-amd--- Appreciation of evidence ---Plea of alibi--- Accused/ appellant was nominated in the FIR with specific role of firing with pistol and murdering the deceased and injuring the complainant --- Appellant did not record his statement on oath ---At the trial the appellant claimed innocence and raised plea of alibi but he failed to prove the same--- Substitution of an accused person, who is involved in the commission of murder, is a rare phenomenon particularly in an occurrence in which a single accused is implicated with specific role in a promptly lodged FIR ---Circumstances established that the prosecution had proved its case against the accused beyond shadow of reasonable doubt through coherent and confidence inspiring evidence ---Appeal was dismissed accordingly. Muhammad Iqbal v. The State PLD 2001 SC 222 ref. Peer Muhammad for Appellant. Sudheer Ahmed, Deputy P.G. for the State Date of hearing: 9th September, 2022. JUDGMENT SARDAR AHMAD HALEEMI, J. ---This appeal is directed against the judgment dated 8th January 2022 (hereinafter the "impugned judgment") passed by the learned Sessions Judge, Gwadar (hereinafter the "trial Court"), whereby the appellant was convicted and sentenced in the following manners: "(i) Under section 302(b), P.P.C. and sentenced to imprisonment for life with fine of Rs. 200,000/ - (Rupees Two Lakh only) as compensation to the legal heirs of deceased Qadir Bakhsh, and in default of payment of fine, the appellant shall further suffer S. I for six months. (ii) Under section 324, P.P.C. for a period of five (05) years R.I with fine of Rs.10,000/ - (Rupees Ten Thousand only) in case of default whereof to further suffer SI for six (6) months. (iii) Under Section 337- F(v) to pay Daman of Rs. 50,000/ - (Rupees Fifty Thousand Only) to the complainant. All the sentences were ordered to run concurrently with benefit of section 382- B, Cr.P.C.

2. The prosecution story, in brief, is on 15th November 2019 at 1:00 p.m. the complainant Dost Muhammad son of Dawood, registered an FIR No. 92 of 2019 at Police Station, Pasni, under sections 302 and 324, P.P.C. to the effect that on 15th November, 2019, he along with his friends Aneel son of Allah Dad, Attaullah son of Muhammad Usman, Qadir Bakhsh son of Muhammad and Najeeb son of Badal were present in the residential quarter/room of Qadir Bakhsh situated at Ward No.5 Pasni; the appellant Mullah Mahir son of Wahid Bakhsh came there and started verbally slamming Qadir Bakhsh; meanwhile he took out his pistol and started firing, as a result of his firing, the complainant Dost Muhammad and Qadir Bakhsh sustained injuries, however, miraculously their other companions saved from the firing of the appellant; the appellant after commission of offence fled away from the occurrence; the complainant and Qadir Bakhsh were shifted to Civil Hospital, where the complainant came to know that Qadir Bakhsh had succumbed to injuries, hence this report.

3. After registration of FIR No.92 of 2019, the investigation of the case was entrusted to PW-7 Hasrat Ali SI of the concerned police station, who carried out formal investigation for collecting evidence and to arrest the appellant.

4. The Investigating Officer prepared inquest report of deceased Qadir Bakhsh (Ex.P/7- B); secured of blood- stained cloths of deceased and injured/PW -1 (Ex.P/6 -A), after treatment of PW -1 was referred to Karachi, visited the place of occurrence, recovery five empties of 9mm pistol and secured the bloodstained mud (Ex.P/6 -B), prepared the sitemap (Ex.P/7- C) and recorded statement of witnesses. During the course of investigation when the investigating officer along with his team were going for the arrest of appellant; when they reached near old fishery colony, they saw the appellant coming on a motorcycle who was apprehended and on his personal search, from his string ( ) of Shalwar, a T.T. pistol No.10010245 made in China Along with magazine and three live rounds were recovered. The recovered articles were seized at site and separate FIR under section 13- e of the Ordinance, 1965 was registered against the appellant. The recovered pistol, empties and live rounds of 9mm pistol were sent to FSL Quetta for analysis. After receipt of FSL report of bloodstained mud, bloodstained clothes and FSL report of ballistic expert report. The challan of the case was submitted before the trial Court and the trial commenced.

5. The trial Court framed the charge against the appellant, to which he pleaded not guilty and claimed trial.

6. The prosecution examined as many as seven (07) witnesses; after completion of prosecution evidence, the statement of appellant was recorded under section 342, Cr.P.C. wherein he denied the allegations levelled against him. However, he did not examine himself on oath as envisaged under section 340(2), Cr.P.C. despite availing several adjourn-ments/opportunities for adducing evidence nor produced any witness in his defence.

7. The trial Court after hearing the arguments of learned counsel for the parties, convicted and sentenced the appellant vide impugned judgment, hence this appeal.

8. Learned counsel for the appellant contended that on the fatefully day of incident, the appellant was present in the Masjid and busy in deliberation and consultation with his fellow members of Tableegi Jamat; the appellant was arrested outside the Masjid after Zohar prayer; this contention was also put to the prosecution witnesses as well as investigating officer; that there are major contradictions and discrepancies in the prosecution evidence, which was taken lightly by the trial Court. Besides, plea of alibi has not been considered.

9. On the other hand, the learned Deputy Prosecutor General supported the impugned judgment passed by the trial Court with the submission that the appellant was nominated with specific role of firing in the promptly lodged FIR, that the injured witnesses PW -1, PW - 2 and PW -3 present in the room, have furnished the ocular account of incident consistently and the prosecution has failed to shake their evidence; that the recovery of 9mm pistol from the possession of the appellant was also corroborated with the report of ballistic expert; that the injuries caused to the deceased and complainant were further corroborated by the MLC produced by PW -4.

10. We have heard the learned counsel for the appellant as well as learned Deputy Prosecution General and perused the record, impugned judgment minutely with their able assistance.

11. Perusal of record reveals that the appellant was nominated in the FIR with the specific role of firing with pistol and murdered Qadir Bakhsh and injured the complainant, which was further corro -borated by MLC of the injured/PW -1 (Ex.P/4- A) and MLC of deceased Qadir Bakhsh. PW -1, PW -2 and PW -3 eye -witnesses of the occurrence remained consistent on all material facts and have not been shaken by the defence.

12. Perusal of record reveals that the occurrence has been witnessed by PW -1, PW -2 and PW-3 who happened to be friends. The three eye -witnesses have fully supported the prosecution version.

13. PW-1, PW -2 and PW -3 being material witnesses have attributed specific role of firing to the appellant, resulting in unnatural death of Qadir Bakhsh. Presence of PW -1 PW -2 and PW-3 at the spot has not been disputed in cross -examination. The statements of eye - witnesses are further corroborated with the statements of PW -4, PW -5 and PW -6.

14. The ocular account furnished by the witnesses is further corroborated by the MLC (Exs.P.4 -A to 4 -C) produced by PW -4. The crime weapon was recovered from the possession of the appellant. Despite lengthy cross -examination by the defence, nothing material came out and the defence has failed to create any dent in the veracity of prosecution witnesses. The prosecution witnesses are reliable, trustworthy and they have deposed the true account of the occurrence. The unnatural death of deceased Qadir and injuries of PW- 1 have not been disputed by the defence.

15. The appellant at the trial claimed innocence and raised plea of alibi but he has failed to prove the same. The appellant did not record his statement on oath.

16. The substitution of an accused person, who is involved in the commission of murder is a rare phenomenon particularly in an occurrence in which a single accused is implicated with specific role in the promptly lodged FIR. In this regard, reliance is placed in the case of Muhammad Iqbal v. The State PLD 2001 SC 222, wherein it was held as follows: - "Moreover we failed to persuade ourselves to hold that the accused was substituted by the complainant party because in the cases of murder falling under section 302, P.P.C. substitution of an accused who is actually involved in the commission of the crime is a rear phenomena in this country particularly in an incident in which single accused was involved by nominating him in the FIR from the very beginning. So much so if the parties are inter -se related to each other, therefore, due to close kinship it is very hard to accept the theory of substi -tution". 16(sic). In view of aforementioned circumstances, we concluded that the prosecution has proved its case against the appellant beyond reasonable doubt. The conviction and sentence awarded to the appellant by the trial Court is not suffering from any illegality or irregularity warranting interference by this Court in appellate jurisdiction. For the above reasons, the appeal is dismissed. MQ/44/Bal. Appeal dismissed.