Inayatullah Versus State

Sardar Ahmad Haleemi, J .--- This common judgment disposes of Criminal Appeal No(s).123 of 2023, and Criminal Revision Petition No(s).26 of 2023.

The Criminal Appeal No(s).123 of 2023 is directed against the judgment dated 18.10.2023 (hereinafter the "impugned judgment" ) passed by the learned Additional Sessions Judge, Nasirabad, at Dera Murad Jamali (hereinafter the "trial Court" ), whereby the appellants were convicted and sentenced in the following manner:

"Accused Jan Muhammad and Inayatullah are hereby convicted under section 302(b), P.P.C. and sentenced to suffer life imprisonment (R.I.) as Ta'zir on two counts each, and to pay compensation in the sum of Rs.500,000/- (Rupees Five Lac) each to the legal heirs of each deceased, as provided under section 544-A, Cr.P.C., or in default whereof to further undergo six months S.I. each.

For attempting at the life of Mureed Ali and Shafqat, the accused persons are further convicted on two counts under section 324, P.P.C., and sentenced to suffer ten (10) years rigorous imprisonment each, and to pay fine of Rs.100,000/- each, or in default to suffer six months S.I. each.

In addition, for the hurt caused to the injured persons, the accused persons are convicted as under:

(i) The injuries sustained by Shafqat fall under sections 337-A(i) and 337-F(iii), P.P.C., and both the accused persons are directed to pay Daman in the sum of Rs.50,000/- each to the injured.

(ii) The injuries sustained by Mureed Ali fall under section 337-D, P.P.C., and both the accused persons are directed to pay individually one-third Diyat each, as determined by the Federal Government for the year 2023-24, to the injured.

(iii) The accused persons are further convicted under section 148, P.P.C., and sentenced to suffer three (03) years rigorous imprisonment each, and to pay fine of Rs.50,000/- each, or in default to suffer four (04) months S.I. each.

Benefit of section 382-B, Cr.P.C. is extended to the accused persons, and all the above sentences shall run concurrently.

Whereas, Qadir Bakhsh, son of Muhammad Hashim (complainant), filed Criminal Revision Petition No(s).26 of 2023 seeking enhancement of sentences of the respondents Nos.1 and 2 (appellants).

2. The prosecution's story, in brief, is that the complainant, Qadir Bakhsh, son of Muhammad Hashim lodged an FIR No.69/2022 with the Police, City Dera Murad Jamali, stating that he was running a cloth shop under the name and style of Al-Yousaf Cloth House, situated in the main bazar near Al-Noor Shopping Center, Dera Murad Jamali. On the day of the occurrence, at about 12:30 p.m., he, along with his brothers, Khair Muhammad alias Kher Jan and Shafqat Ali, was present at the shop. At that time, Shahal Khan, son of Muhammad Murad, along with his nephew Ali Dost Khiazai, a resident of Balan Shakh who was stated to be a regular customer, also arrived there to purchase clothes. It was alleged that meanwhile the accused persons, namely Inayatullah son of Saeed Bakhsh, Muhammad Sharif son of Khuda Bakhsh, Muhammad Gull and Barfi Khan (both sons of Elahi Bakhsh), Sanwal Khan son of Dilmurad, Ahmed Din son of Khuda Dost, all by caste Lehri, residents of Barig Kaboola, and Jan Muhammad son of Yar Muhammad, caste Lehri, resident of Sariab Mill, Quetta, armed with deadly weapons, arrived at the shop of the complainant and raised lalkara to the effect that no one would be spared. It was further alleged that the accused persons resorted to indiscriminate firing, as a result of which Khair Muhammad alias Khair Jan, Shafqat Ali, and customer Ali Dost Khiazai sustained firearm injuries and fell to the ground. The complainant and Shahal Khan Khiazai reportedly remained unhurt. It was further alleged that while fleeing from the place of occurrence, the accused persons again opened fire and caused injuries to Murid Ali, son of Muhammad Qasim, whereas his brother Abdul Rasheed escaped unhurt. Due to the injuries sustained, Khair Muhammad, alias Khair Jan and Ali Dost Khiazai succumbed to their injuries; the accused persons, Jan Muhammad, Inayatullah, and Sanwal Khan, fled the scene in a vehicle bearing registration No.AXT-128, while Muhammad Sharif, Barfi Khan, and Muhammad Gull escaped on two motorcycles. The motive for the occurrence was stated to be an old blood feud and enmity between the parties, leading to this report.

3. In pursuance of the above FIR, the investigation of the case was entrusted to PW-7 SI Mughal Khan, who initially rushed to the Civil Hospital, where the SHO had already recorded the statement of the complainant. Thereafter, the Investigating Officer proceeded to the place of occurrence, prepared the site plan, secured blood-stained cotton from the spot, sealed the same into parcels, and prepared the necessary recovery memos. During the course of investigation, the I.O. also took into possession ten (10) empties of 7.62 bore, empties of 30 bore, and four (04) empties of 9mm pistol from the place of occurrence and prepared recovery memos in respect thereof. The I.O. recorded the statements of the eye-witnesses under section 161, Cr.P.C. On 25.04.2022, the accused persons facing trial were arrested, and a .9mm pistol, along with two magazines and live rounds, was recovered from their possession. After completion of the initial investigation, the accused persons were sent to judicial custody. During his testimony, PW-7 brought on record the FIR bearing the signatures of SI Khamisa Khan. He further produced the merger reports and site plan, which were exhibited as Exh-P/7-A to Exh-P/7-D, bearing his signature, and also tendered the incomplete challan as Exh-P/7-E, bearing the signatures of SI/SHO Haider Shah. The second Investigating Officer, PW-8 SI Ghulam Qadir Rind, deposed that he brought on record the incomplete challans, analysis report, and legal heir certificate, which were exhibited as Exh-P/8-A to Exh-P/8-E. It is pertinent to note that while the accused persons facing trial were arrested, the other nominated accused persons could not be apprehended; consequently, proceedings under sections 87 and 88 of the Cr.P.C. were initiated against them, and they were declared proclaimed offenders.

4. After completion of the investigation, a formal charge was framed against the appellants, to which they pleaded not guilty and claimed trial. In order to substantiate its case, the prosecution produced and examined eight (08) witnesses. The statements of PW-7 SI Mughal Khan and PW-8 SI Ghulam Qadir Rind have already been discussed hereinabove. After the closure of the prosecution evidence, the appellants were examined under section 342, Cr.P.C., during which they denied the allegations levelled against them and pleaded innocence. However, the appellants did not examine themselves on oath under section 340(2), Cr.P.C., nor did they produce any witness in their defence. The brief resume of the remaining prosecution witnesses shall be discussed at the appropriate stage.

5. The trial Court heard the arguments of learned counsel for the parties and convicted the appellants vide impugned judgment, hence these Criminal Appeals against convictions, whereas the Criminal Revision Petition for enhancement of the sentences.

6. Learned counsel for the appellants inter alia contended that the impugned judgment dated 18.10.2023, passed by the trial court, is contrary to the facts, settled principles of law, and natural justice; that the prosecution has failed to prove its case beyond reasonable doubt, as no specific role has been assigned to any of the appellants, and despite invoking section 149, P.P.C., the trial court failed to record any positive and concrete findings regarding the common object or vicarious liability as required by law; that the trial court erred in treating PW-2 as an eye-witness, as his own statement shows that he was outside the complainant s shop when the firing started, rendering his presence at the scene doubtful; that the shop was jointly maintained by the complainant and his brothers, which further raises doubts regarding the precise identification of the appellants; that PW-2 exaggerated his version, his conduct is unnatural, and his testimony was liable to be discarded, yet the trial court relied upon it as strong evidence; that PW-2 sustained only one injury, whereas more than one appellant was convicted for causing the same injury, making the conviction under section 324, P.P.C. legally untenable; that there is an unexplained delay of about twenty-five days in recording the statements of injured witnesses PW-2 and PW-3, despite their fitness to make statements soon after the incident, which remains fatal to the prosecution case; that material and independent witnesses, including Abdul Rasheed, were withheld by the prosecution, attracting adverse inference under Article 129(g) of the Qanun-e-Shahadat Order, 1984; that there are material contradictions regarding transportation of injured persons to the hospital, identity of drivers, preparation of inquest reports, and presence of alleged eye-witnesses, creating serious doubt about the prosecution story; that the investigation is tainted and partisan, as crucial proceedings at the place of occurrence were not conducted on the pointation of any witness, nor were statements recorded at the spot; that recoveries and forensic evidence are unreliable due to unexplained delay in sending case property to the Forensic Science Laboratory, absence of proof of safe custody, selective forensic examination, and non-recovery of crime empties from inside the shop despite alleged firing therein; that no identification parade was conducted, although PW-2 admitted he did not know the appellants prior to the incident; that the alleged motive of previous enmity was not proved in evidence; that serious contradictions exist between ocular and medical evidence, absence of blood-stained clothes or articles from the spot, and improbability of the prosecution version in light of the manner of occurrence; that the statements of the appellants recorded under section 342, Cr.P.C. are defective, as all incriminating material was not properly put to them, and the impugned judgment is non-speaking, based on conjectures and surmises, in violation of sections 342 and 367, Cr.P.C.; that the testimony of PW-3 and PW-4 also raises serious doubt about identification; and that the appellants are entitled to the benefit of doubt. In support, reliance was placed on judgments reported in 2020 SCMR 857, 2018 SCMR 772, 2017 SCMR 486, 2017 SCMR 596, 2011 SCMR 323, 2018 SCMR 506, 2025 SCMR 281, 2024 SCMR 1579, 2024 SCMR 1584, 2024 SCMR 1224, and 2024 SCMR 1507. Lastly, prayed for the setting aside of the impugned judgment and to acquit the appellants.

7. The learned counsel for the complainant argued that the convict appellants/respondents were members of an unlawful assembly and, while armed with deadly weapons, indiscriminately fired upon the complainant party, causing the death of two persons and injuries to two others; that offences under sections 302, 324 read with section 148, P.P.C. are fully made out, and in view of the heinous nature of the crime, the convict respondents deserved capital punishment instead of life imprisonment; that the ocular evidence, particularly the testimony of the complainant and other eye-witnesses, including PW-2 and PW-3, is confidence-inspiring, truthful, unmotivated, and corroborated by the FIR, medical evidence, and ballistic reports; that cross-examination did not shake the witnesses on material aspects of the case; that the complainant and his family were well-acquainted with the appellants, the occurrence took place in broad-daylight, and the assailants openly carried out indiscriminate firing, leaving no doubt as to their identity; that PW-2 and PW-3, who sustained bullet injuries, are independent witnesses with no enmity or relation to the complainant, fully corroborating the ocular account; that PW-4 Shahal Khan also confirmed indiscriminate firing by the appellants along with absconding accused, providing independent and confidence-inspiring evidence; that no extenuating or mitigating circumstances exist to justify awarding lesser punishment; that the principle of proportionality requires that punishment must fit the crime, and in the present case, the life sentences awarded are grossly inadequate; that the trial court, despite being satisfied of the heinousness of the offence, failed to award the legally warranted sentence of capital punishment, thereby mis-exercising its discretion; that crime weapons were recovered from the possession of the convict respondents, properly sealed and sent for ballistic examination, which confirmed their use, corroborating the ocular account; that the medical evidence fully supports the ocular account; that other irregularities and illegalities exist in determining the quantum of sentence; that the petitioner reserves the right to raise further points at the hearing; and in the interest of justice, it is prayed that the quantum of sentence awarded be enhanced from life imprisonment to capital punishment.

8. On the other hand, the learned Additional Prosecutor General, while supporting the impugned judgment and adopting the reasoning recorded therein, contended that the prosecution successfully proved its case against the appellants beyond reasonable doubt through confidence-inspiring ocular evidence corroborated by medical evidence, FIR, and forensic reports; that the presence of the complainant and injured witnesses at the place of occurrence stands firmly established, and their testimony cannot be discarded merely on account of relationship or alleged interest; that minor discrepancies highlighted by the defence are natural and do not affect the core of the prosecution case; that any delay in recording the statements of injured witnesses has been satisfactorily explained and is not fatal to the prosecution; that the appellants were members of an unlawful assembly, armed with deadly weapons, and acted in furtherance of a common object; that their conviction under sections 302, 324 read with section 149, P.P.C. is fully justified; that once the common object is established, specific role of each accused is not required to be assigned, and the principle of vicarious liability has rightly been applied; that non-production of some witnesses or minor lapses in investigation do not demolish the prosecution case when substantive evidence is on record; that recoveries of weapons, positive ballistic reports, and medical evidence fully corroborate the ocular account; that the motive, though established, is secondary where direct ocular evidence is available; that minor contradictions between ocular and medical evidence are not material; that statements under section 342, Cr.P.C. were properly recorded and no prejudice was caused; that there were no mitigating circumstances entitling the convict respondents to lesser punishment, and the principle of proportionality requires punishment to fit the crime; that the trial court rightly observed the heinousness of the offence and, accordingly, the impugned judgment is well-reasoned, speaking, and based upon proper appreciation of evidence; that the sentence of life imprisonment should be enhanced to capital punishment due to the gravity of the crime; and that the appeal being devoid of merit is liable to be dismissed.

9. After hearing learned counsel for the parties at length, we have minutely perused the available record with their able assistance.

10. Perusal of record reveals that PW-1 Qadir Bakhsh ( complainant ) reported the incident through a written application, Ex.P/1-A. The complainant is an eye-witness of the occurrence, deposed that on 24.04.2022 at about 12 Noon, as usual, he along with his brother Khair Muhammad and Shafqat Ali were present in his cloths shop namely Al-Yousaf Cloth House, situated in main bazaar near Al-Noor Shopping centre, Dera Murad Jamali; his an old customer Shahal Khan along with his nephew arrived there and were being shown different colour cloths; in the meantime, the accused Inayatullah, Jan Muhammad, Muhammad Gul, Barfi Khan, Muhammad Sharif, Ahmed Din and Sawan Khan arrived at the shop and challenged them (lalkara) that you will not be spared today; the accused took out their weapons and started indiscriminate firing, due to which, his brother Khair Jan alias Khair Muhammad, Shafqat Ali and the customer Ali Dost sustained severe injuries and felt down; the accused persons while fleeing, made firing, which caused injury to a passerby Mureed Ali outside the shop. However, the complainant, Shalal and Abdul Rasheed remained safe miraculously; the complainant's brother Khair Jan alias Khair Muhammad and the customer Ali Dost succumbed at the spot; the accused Inayatullah, Jan Muhammad and Sawan fled away in a car Exio No.128 towards south, while Muhammad Gul, Barfi Khan, Ahmed Din and Muhammad Sharif escaped towards north on separate motorbikes; thereafter, the complainant arranged a vehicle, took the injured and the deceased to the hospital. The testimony of the complainant reveals that he had nominated the appellants in the FIR with a specific role of firing.

11. Before dilating upon the ocular and circumstantial evidence, it would be appropriate to discuss the medical evidence in the first place. In this context, PW-5 Doctor Naseer Muhammad, Medical Officer, Divisional Headquarter Hospital, Dera Murad Jamali, examined the deceased Ali Dost and Khair Muhammad; he produced the death certificates as Ex.P/1-A and Ex.P/1-B. On the same day, he also examined the injured Shafqat and Mureed Ali, and noted the injuries, which were incorporated in the MLC Ex.P/5-C and Ex.P/5-D, respectively; both the injured persons sustained the following injuries:

Injuries of Shafqat Ali.

1. An entry wound semicircular shape, inverted margins on right side of face.

2. An exit wound irregular in shape, inverted margin on right side of neck, which penetrate about 3 cm with fresh bleeding.

3. An entry wound semicircular in shape, inverted margin on right side of neck.

4. An exit wound irregular in shape, inverted margin on back of neck with fresh bleeding.

5. An entry wound, semicircular in shape inverted margin on right arm with fresh bleeding.

6. An exit wound irregular in shape, inveted margins on same side of right arm.

7. An entry wound on right upper thigh an anterior side with inverted margin and fresh bleeding.

1st aid given, then referred to LNH Karachi, According to feedback there were fracture of right femora and right scapular back, neck wound exploration, right side back wound exploration right be polar hemi arthoplsty.

Duration of injures: Fresh

Weapon used: Firearm

Injuries of Mureed Ali.

1. An entry wound about one cm with inverted margins semicircular in shape blackening present on right lateral side of abdomen.

2. An exit wound irregular in shape, inverted margin at centre of chest.

1st aid given then referred to CMCH Larkana, according to feed back report, exploration laprotomy via mid line done. (Laceration of liver repaired, adjacent liver rib fracture seen, chest intubations done). After operation patient admitted, treated then discharged on 29.04.2022.

Duration of injuries: Fresh

Weapon used: Firearm

The defense cross-examined the witnesses but did not dent their veracity. Likewise, PW-2 Muhammad Mureed (injured/independent eye-witness) deposed that on the fateful day, he had come to bazaar for purchasing cloths and grocery; he was on the road, going towards the shop; seven accused persons armed with weapons, started firing, due to the firing, Khair Muhammad Lehri, Ali Dost died at the spot, while Shafqat sustained firearm injuries; on returning, Jan Muhammad (appellant) having pistol, fired at him, which hit on his right backside and stuck in abdomen; his brother Abdul Rasheed brought him to the Civil Hospital and he was referred to Larkana; the accused Jan Muhammad, Inayatullah, Sawan, Barfi Ahmed Din, Muhammad Gul and Muhammad Sharif made firing; after treatment, he came home; on 19.05.2022, he recorded his statement in the police station. As per record, PW-2 belongs to a different tribe and has no relation with the complainant party. The defense has not disputed the PW-2 injuries and the presence at the place of occurrence. PW-2 ocular account corroborates with PW-1 and with medical evidence. The testimony of the eye-witness shows that the defense did not allege any enmity, ill will, or malice against the said independent witness, who strengthened the prosecution's version.

12. Moreover, PW-3 Shafqat Ali (injured/eye-witness) reiterated the facts narrated by the PW-1. Admittedly, PW-1 and PW-3 are real brothers, and due to their kinship, the false implication or substitution of the appellants in the commission of the offence is also hard to believe. Reliance in this regard is placed on the case of Muhammad Iqbal v. The State (PLD 2001 SC 222), the relevant part is reproduced as under:

"---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 rare 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 substitution. Reference in this behalf may be made to the cases of (i) Sirajuddin v. Kala and another PLD 1964 SC 26 (ii) Rahim Bux v. Muhammad Iqbal and others 1976 SCMR 528, (iii) Zar Bahadur v. The State 1978 SCMR 136, (iv) Muhammad Ayoob alias Nikka v. The State PLD 1983 SC 27, (v) Shoukat Javed v. The State PLD 1993 Peshawar 109 and (vi) Ameer Ali v. The State 1999 MLD 758".

13. PW-4 Shahal Khan, also an independent witness, corroborated the statements of PW-1 and PW-3. He remained firm on all material points. However, learned counsel for the appellants pointed out minor contradictions and discrepancies in the statements of the prosecution witnesses, which are immaterial in the case where two people lost their precious lives and two sustained firearm injuries on vital parts of their bodies. The Apex Court, in a catena of decisions, has held that if the prosecution evidence does not suffer from any material infirmity, it is not rendered unworthy of credence.

14. In addition to this, PW-6 Shahnawaz, Head Constable, further strengthened the prosecution's case. The testimony of PW-8 reveals that on 25.04.2022, he along with SHO Ghulam Ali Kanrani, at Gas Pipe Check-Post, signaled a vehicle to stop; on query, the persons disclosed their names as Jan Muhammad and Inayatullah; they were apprehended; on personal search, the crime weapon i.e. a 9mm Pistol, a magazine and six live rounds were recovered from Jan Muhammad. PW-7 Mughal Khan, SI/Investigating Officer, sent the secured empty shells from the place of occurrence and the recovered crime weapon to the Firearm Expert for analysis, followed by an affirmative report Ex.P/8-C.

15. The reappraisal of the prosecution evidence reflects that the medical evidence corroborates the ocular account furnished by the witnesses. The prosecution witnesses deposed the true version of the occurrence. Admittedly, the incident took place in broad daylight, and the appellants, along with their accomplices, had not covered their faces; as such, their false identity or substitution is a rare phenomenon. The prosecution witnesses remained consistent on each material point. Despite the lengthy cross-examination, the defense has failed to shake the credibility of the prosecution's witnesses. The appellants claimed their innocence and took the plea of alibi, but they were unable to substantiate it.

16. As a sequel to the above discussion, it is concluded that the prosecution has succeeded in proving its case against the appellants. The trial Court has already considered the mitigating circumstance while awarding a lesser punishment.

17. No infirmity, perversity, misreading or non-reading of the evidence has been pointed out that warrants the interference of this Court in the appellate jurisdiction.

The case laws referred to and relied upon by learned counsel for the appellants are distinguishable from the facts and circumstances of the instant case.

For the above reasons, Criminal Appeal No(s).123/2023 being bereft of merits is dismissed. Consequently, the Criminal Revision No(s).26 of 2023 for enhancement of sentences stands dismissed.

JK/1/Bal. Appeal dismissed.