2017 PLP 1081 (MLD)

WAZIR SHAKEEL AHMED, J.

Brief facts of the case are that on 14-09-2012 at about 11:30 hour's one Mohammadi son of Raja Ali resident of Thole Nagar of present Lali Mohalla Amphari Gilgit submitted a written report upon the basis of which FIR bearing No.158 of 2012 was got recorded by the police Thana City Gilgit.

2. The complainant through the above application stated that he along with his family are residing in Mohallah Amphari Gilgit and earn their living in a Karkhana situated in the back side of China Trade Center Gilgit. On the day of occurrence i.e. 11-09-2012 the complianant was busy in his work at about 11:00 hours he was informed that his son Javed Hussain is fired at who has been brought to DHQ hospital Gilgit whereupon he reached hospital at once where he found his son at the gate of operation theater in a pool of blood. On inquiry, his son in his senses told that he had come to the Lali Mohalla Dispensary area where convict Naveed Akhter alias Jani with the intention of murder fired one after another and run away towards Lali Mohalla and he has been brought to DHQ hospital by some persons of Khur Mohalla. The complainant further narrated that he and his son has no enmity in Gilgit, the accused has fired on his son just on the basis of sectarian terrorism.

3. The police on the basis of the above report got started initial investigation, in the process of which it took in possession two empty shells of 9mm Exh-PW-5B, blood stained earth Exh-PW-5A along with other routine Investigations. Police also got prepared the site plan of the occurrence Exh. PW-9A, afterwards the investigation of the case was entrusted to SIP Naseem Hussain, who arrested the present convict on 27-04-2013 from Thalichi Check post who according to the contents of the challan confessed before the Joint Investigation Team (JIT) that on the day of occurrence he along with a person named Nomi resident to Basin Khari inquired about identity to the deceased at the place of occurrence, on which he told them that he is resident of Nagar, on which he was murdered through repeated firing. After the occurrence the two accused i.e. convict Naveed Akhter alias Jani and Nomi made made their escape good. During the investigation the actual name of the accused Nomi was known to be Shehzad son of Mashroof Khan resident of Eidgah Astore who admittedly could not be arrested till the submission of the present challan and his name appears in column No.2 of the challan bearing No.80/13 in the case in hand and the present accused was made to face the charge under the above sections through the above challan.

4. The learned trial court charged the appellant under section 302/34, P.P.C. read with section 21-L and 6/7 of ATA, 1997 on 18-07-2013. The prosecution in support of its case got adduced 14 P.Ws. abandoning other 6 P.Ws. being unnecessary and after full trial the present convict was sentenced with death with fine through impugned judgment hence this appeal.

5. We have heard the learned counsel for the appellant at length and have also gone through the record of the case with his able assistance. The learned counsel vehemently argued that the prosecution has bitterly failed to prove the guilt of the appellant hence the impugned judgment dated 20-08-2014 of learned Anti-terrorisim Court is against the basic principles of law which resulted into a huge miscarriage of justice. He argued that the instant conviction has been based totally on deposition of highly interested and untrustworthy witnesses.

6. He further argued that no incriminating article has been recovered from the possession or on pointation of the appellant/convict. The medical report totally negates the whole prosecution version and the learned trial court failed to extend the benefit of number of doubts to the convict/appellant and in the contrary extended the same towards the prosecution against the basic principles of criminal justice system.

7. On the other hand the learned Deputy AG argued that the convict/appellant is directly charged in a promptly lodged FIR for committing of the brutal murder who avoided his arrest for a fairly long period. The dying declaration of the deceased made before the police-official PW-1 and PW-2 are sufficient to prove the case against the convict/appellant beyond the shadow of any doubt.

8. The case admittedly is that of no eye witness and admittedly the whole prosecution case is based on the alleged dying declaration of the deceased made before his father/PW-1 and SIP Naseem Hussain/PW-2 who undertook the initial investigation of the case in hand. The first PW/complainant, the father of the deceased got recorded his statement before the trial court as PW-1 on 17-09-2013 during which he narrated the story mentioned in the FIR with the slight modification/explanation that he got written the application containing the contents of FIR from one of his relative in DHQ hospital Gilgit and handed over to the police who had brought his son to DHQ hospital Gilgit in injured condition. It is also admitted by him that when he reached DHQ hospital Gilgit, many people were present there and when he reached near his injured son in front of O.T. only police personnel were present there with his injured son. This PW during his statement states that he received the information of the occurrence at 11:00 a.m. that his son has received fires and he is in DHQ hospital but during cross examination he took the stand that when he reached in the hospital at about 11:00 a.m., he stood with his son for about a minute. It is also mentioned in the cross examination that he received information about 11:00 a.m., after receiving information, he reached DHQ hospital within 3- 4 minutes and the distance in between was 3-4 minutes walking. It is also worth mentioning here that according to the contents of FIR, it is narrated by the complainant that after reaching hospital when he inquired his son, he replied that he (deceased) had gone to Lali Mohalla Dispensary over where accused Naveed Akhter urf Jani son of Abdullah alias Abdulo resident of Lali Mohalla Amphari has fired repeated shots at him in order to murder him and has run away towards Lali Mohalla and he has been brought to the hospital by some persons of Khur Mohalla as mentioned Supra but during the examination in chief, this PW has categorically stated that his son was brought to the DHQ hospital by the police.

9. Now let's scan the statement of other PW who already support the dying declaration of the deceased. This PW-2 SIP Naseem Hussain who during his examination-in-chief before the trial court narrates that during the days of occurrence he was performing his duties in Police Station City Gilgit. On the day of occurrence when he was present in PS City Gilgit, the SHO PS who was on patrolling duty informed him through wireless set at about 11:00 am that in Amphari area, fire has been opened on a person, further informing that he is going to DHQ hospital and directed him to reach there. He accordingly reached there and saw deceased smeared in blood in front of O.T. of DHQ hospital Gilgit and he took the injured inside the O.T in a room where the officials of O.T. gave first aid to the injured in the outer room of O.T. He asked the injured who has opened fire at him: Whereupon he told him in a slow voice that one Jani of Lali Mohalla has fired on him. This PW-2 wanted to ask further questions to the injured but the staff of O.T restrained him by telling that it is necessary first to save the life of the injured and took him out from the O.T. The SHO asked him to remain there by saying that he will go to the spot of occurrence for carrying out the necessary proceedings. PW-2 further narrated during his statement before the court that after some time father of the deceased handed over him an application Exh-PW-1/A regarding the instant occurrence. He firstly read over the contents of the same to the complainant and then proceeded to P.S. City Gilgit and handed over the above application for carrying out further proceedings on the. same and returned back to the hospital and after some time he was informed that the deceased has been expired in the O.T during treatment after which he conducted further necessary investigation in the shape of recovery of blood stained clothes of deceased Exh-PW-2/A, getting possession of the dead body after-postmortem Exh-PW-2/B , prepared identification memo of the dead body Exh-PW-2/C, handed over dead body for postmortem Exh-PW-2/D and further handed over the dead body to the Legal Heirs vide Exh-PW-2/E. During the cross examination the PW admits that his statement under section 161, Cr.P.C. was recorded by IP Nusrat in PS after eight months of the occurrence. He also admits that when he entered the O.T. there were two nursing assistants present there and when the doctor reached there, he went out of the O.T. This PW also admits that when he reached DHQ hospital Gilgit at 11:05 a.m., ASI Ashiq Hussain was also accompanied with him. When he reached in DHQ hospital, police officials were with the injured and there were also staff of the hospital. The deceased when he was in injured condition was in a position to speak.

10. PW-3 is the marginal witness of the proceedings after the death of the accused.

11. PW-4 is also witness of identification memo PW-2/C vide, which the dead body of the deceased was identified by his brother Mir Alam.

12. PW-5 is IP Basharat Hussain who was also present in the PS City Gilgit on the day of occurrence on duty, at about 11:00 a.m. the information of the incident was received through control and on the direction of the SHO he proceeded towards the place of occurrence and after reaching there this PW prepared recovery memo. Exh-PW5/A whereby this PW took in his possession the blood stained earth from the place of occurrence. He also took in possession two empty shells of 9mm vide Exh-PW-5/B and also prepared site plan PW-5/C. During the cross examination this PW confirms that SHO Ayaz was present in PS when the information was received about the occurrence who left the PS straight for the place of occurrence. This PW admits that he left the PS after about 20 minutes after departure of IP Ayaz and he reached DHQ hospital within 5 minutes. He found the complainant in the hospital where they remained with one another about 10-15 minutes. Self-stated that when he met the FIR lodger, he immediately left DHQ hospital and he along with the FIR lodger reached at the place of occurrence within 5 to 10 minutes. This PW also admits during the cross examination that he has prepared the site plan Exh-PW-5/C on the pointation of the complainant and further admits that the complainant is not eye-witness of the occurrence. The PW also admits presence of number of people in the scene of occurrence and also of not associating any of them in preparing the site plan Exh.PW-5/C.

13. PW-6 is HC Ejaz Ali who is the marginal witness of recovery memo Exh-PW-5/A and PW-5/B vide which the police took into its possession the blood stained earth from the place of occurrence and empty shells Exh-PW-5/A and PW-5/B respectively. This PW during cross examination states that there were no private persons at the place of recovery.

14. PW-7 is the police official SSP Mohammad Ali Zia who got recorded the confessional statement of the appellant under section 21-H of ATA, 1997 vide Exh-PW-7/A. This PW has admitted during cross-examination that the present appellant stated before him that:--

15. PW-8, is the doctor who conducted the postmortem of the deceased and prepared autopsy report Exh-PW-8/A. During the cross examination this PW admits that an operation was conducted by Doctor Masroor Ali surgical specialist who has conversation with the PW after the postmortem. This PW also admitted that it is not mentioned in the Autopsy report Exh-PW-8/A that the injured/ deceased when received in DHQ hospital was conscious and in his full senses. He also admits that the brief history of report was written by him wherein it is written that:-- Deceased received gunshot injuries and brought to DHQ hospital Gilgit and he further admits it correct that the word deceased means the dead person. This PW further admits that time elapsed between death and postmortem is round about 2 hours which is mentioned in Exh-PPW-8/A. The PW further admits that according to the injuries mentioned as Nos. 1, 2 and 3 the tongue is to be injured. Self-further stated that it is an aro-facial injury and the tongue is included in this injury. He further admits that if the tongue is injured nobody can speak.

16. PW-9 is the Magistrate who accompanied IP Nusrat along with appellant Naveed Akhter and other police officials to the place of occurrence where the appellant allegedly disclosed that co-accused Shehzad Aliyas Nomi was also with him. According to the statement of this PW appellant further stated that deceased Javed Hussain was coming from the upper side of the Cool from western side to eastern side, when he came near the accused, the co-accused Shehzad alias Nomi opened fire on the deceased and he felt down on the ground. This PW endorses the contents of the site plan prepared by the I.O. on the pointation of Naveed Akhter on the place of occurrence Exh-PW-9/A.

17. PW-10 is UP/HC Mohammad Nabi who was also accompanied with the IP and the PW-9 Magistrate Asgar Khan to the scene of occurrence when the present appellant got prepared the site plan Exh-PW-9/A mentioned above whereby the appellant has allegedly stated that co-accused Shehzad alias Nomi has opened fire on the deceased Javed Hussain.

18. PW-11 is the IP Mohammad Ayaz who during his statement before the court states that on the day of occurrence i.e. 14-09-2012 at about 11:00 hours he went out of PS city for patrolling duty, in the meanwhile he received a call from control on wireless set that a person has been hit by opening fire by gunshot at Khur, when he reached PS, Moharrir PS submitted him an application Exh-PW-1/A submitted by Mohammadi, complainant for registration of case accordingly he on the basis of the same Exh-PW-1/A registered FIR Exh-PW-II/A. During the cross examination this PW admits that after registering the case, he did no proceed to the place of occurrence. He also admits that there is no mention of KARWAI police in the bottom of FIR Exh-PW-II/A. This PW further admits it correct that column No. 6 of FIR is blank and also admits that the signature of complainant has not been obtained on FIR Exh-PW-II/A.

19. PW-12 is HC Ahmed Ali who handed over the warrant issued against the appellant under section 204, Cr.P.C. who searched the accused but could not trace him, accordingly the warrant was returned. During the cross-examination he states that he searched the appellant in the house of his relatives and admits that the names of the relatives are not mentioned. However he got verified disappearance of the appellant from the house of Jafarullah, candidate of GB council.

20. PW-13 is IP Mirza Mohammad who was performing his duty in the investigation wing Gilgit during the month of September 2013. On 27-09-2013 the investigation of the instant case was entrusted to him who started the re-investigation of the case and studied the case file. Despite his best efforts he could not collect further evidence against the present accused. This PW has prepared challan PW-13/A on the basis of previous evidence collected by IP Nusrat and placed the name of accused Shehzad alias Nomi in column No. 2 of the challan. During the cross examination he admits it correct that father of deceased/ complainant requested him several times in written and verbally to re-investigate and strengthen the case after effecting the recovery of weapon of offence from the appellant Naveed Akhter. He further admits that he did not recover any weapon of offence from the appellant. He further admits that contents of Exh-PW13/A are fair and correct.

21. PW-14 is IP Nusrat Wali who was entrusted with present case for investigation on 17-09-2012. He was also accompanied with a member namely Ali Haider to investigate the case. He obtained warrant of arrest Exh-PW-14/A under section 204, Cr.P.C. against the present appellant and deputed HC Ahmed Ali, PW-12 for execution of the same which was returned unserved. This PW also prepared challan Exh-PW-14/B against the appellant who was arrested on 27-04-2013 from Thalichi Checkpost and handed over to him for investigation. According to examination in chief of this PW, the appellant disclosed his name as Naveed Akhter son of Adullah alias Abdulo. During the investigation conducted by the PW, appellant allegedly disclosed the name of absconder accused as his accomplice. This PW searched the accused Shehzad alias Nomi in the office of PWD. He also got recorded statement of SIP Nasim Hussain, PW-2 under section 161, Cr.P.C. on 13-05-2013. It is also further alleged that during the JIT investigation, the appellant confessed his guilt and disclosed the name of his companion. This PW also submitted application Exh-PW-14/C to AC Gilgit for deputing a Magistrate in the presence of whom he prepared site plan Exh-PW-9/A of the place of occurrence on the pointation of the appellant Naveed Akhter and the marginal witness. This PW also recorded confessional statement of the appellant under section 21H of ATA, 1997 by PW-7 on 21-05-2013. This PW requested for issuance of warrant of arrest under section 204, Cr.P.C. against the co-accused Shehzad alias Nomi which was accordingly issued vide Exh-PW-14/D and SGC Dildar Ahmed was deputed for examination of the same and afterwards also got recorded the statement of above SGC Dildar regarding non-execution of warrant Exh-PW-14/D on 04-06-2014. The I.O./PW-14 prepared challan No. 05/13 Exh-PW-14/E against the present appellant and placed the name of the absconder/accused Shehzad in column No. 2 of the challan and submitted the same before the court. During the cross-examination he admits that the present appellant was handed over to him in the investigation wing Gilgit by the police personnel deputed at Thalichi Barrier but he neither knows the names of the above police personnel nor has he cited them as PWs in the instant case. To a question asked by the defense, this PW did not admit it correct that after receiving the information about the investigation in the instant case, the appellant himself surrendered before the PW in investigation wing Gilgit. This PW also admits the contents of the FIR wherein it is stated that the deceased was taken from the place of occurrence i.e. Lali Mohallah to DHQ hospital Gilgit by some persons but their names are not mentioned in the instant case by him or by any other I.O. of the case. It is also admitted correct that the said persons are not cited as PWs in the instant case. This PW also admits it correct that the doctor who conducted operation on the person of Javed Hussain was not cited as PW in the instant case. This PW further admits it correct that the appellant Naveed Akhter present in the court did not confess in his statement recorded under section 21H that he himself repeated fire on the deceased and murdered him. This PW/I.O. further admits it correct to suggest that in his whole investigation he had not found that appellant, Naveed Akhter opened fire on the deceased. This PW further admits that two site plans of place of occurrence have been prepared, one by the I.O. Basharat vide Exh-PW-5/C on the pointation of the FIR lodger/ complainant of the instant case while the other site plan Exh-PW-9/A was got prepared on the pointation of appellant by this PW. The PW also admits that there is no eye-witness of the occurrence in the instant case. The PW further admits that it was not in his knowledge whether deceased in injured condition was in a position to speak or not. The I.O. of the case i.e. PW-14 also admits that:-- There is no statement available on prosecution file of any doctor regarding to the speaking condition of the deceased when he was brought in DHQ and treated by concerned doctor. This PW finally accepts it correct that none of the private persons from the vicinity who were present during the preparation of site plan were included to be witnesses in the instant case.

22. From the above detailed discussion it is clear that the prosecution has failed to connect the involvement of the present appellant in commission of the offense in hand and the whole material collected by the prosecution is in support of its case including that of the confessional statement of the present appellant recorded under section 21H of ATA, 1997 clearly shows that the actual offense of committing the murder of the poor deceased is committed by the co-accused whose name is not mentioned in column 1 of the challan to the reason best known to the JIT. The only case which has been made by the prosecution against the appellant is that of the dying declaration which is being tried to be proved by the statement of PW-l/complainant and PW-2, the SIP in front of whom the deceased Javed Hussain declared that the appellant had fired repeated gunshots in order to murder him.

23. We are afraid that the two self-destructive statements of the above PWs 1 and 2 cannot safely be relied upon in the particular circumstances of the case in hand wherein the prosecution has failed to cite the O.T. personnel in front of whom the deceased has stated the above narration to the PW-2.

24. The autopsy report coupled with the statement of the doctor PW-8 who conducted postmortem of the deceased further confirms that the nature of injuries Nos. 1, 2 and 3 were such in which it is highly improbable for the person to talk as found in the cross-examination of PW-8. It is also worth mentioning to notice here that the PW-2 was the first person who reached DHQ hospital and found the injured outside the O.T. and afterwards he was shifted to the inner side of the Theater in a room before the O.T. wherein the injured accused the present appellant of repeated firing on him where two O.T. personnel were also present who further restrained the PW-2 to further conversation with the injured.

25. The other statement of PW-1 /complainant when kept in with Juxtaposition with that of the statement of PW-2, it will transpire that the two statements pertaining to the above dying declaration are self-destructive as admittedly the complainant has reached DHQ hospital after the arrival of the police personnel. The relevant portion of cross-examination of his PW/complainant is reproduced as under:-- When I reached in DHQ hospital there were many people were present in DHQ hospital. When I reached near my deceased son at DHQ hospital in front of O.T. when he was in injured condition, only police personnel were present with my injured son. From the above statement it transpires that the alleged conversation might have been took place in front of Q.T. as narrated above as against the earlier statement of PW-2 who states about the dying declaration in the room inside of the O.T. complex.

26. The record of the prosecution is otherwise silent about the presence of police personnel in front of O.T. when the injured was lying with the police personnel where he declared against the present appellant.

27. In the particular circumstances of the case in hand as discussed in the above detailed statements of PW-1 and PW-2 regarding dying declaration cannot by any means be relied upon being self-destructive and clearly against the medical report placed on file.

28. The only material question regarding the ability or otherwise of the injured to talk could not have only be ascertained if any of a person including the surgeon who operated the injured and the O.T. personnel in front of whom the alleged dying declaration was made to PW-2 has been cited as PWs in the absence of which no case is admittedly made out by the prosecution against the appellant rather the whole investigation of the case except the alleged dying declaration suggest the commission of the offense against the co-accused who is placed in column No.2 of the challan and in the light of the above discussion all the benefits of the irregularities rather allegations in the investigation should have gone other than to the appellant.

29. In the light of what has been discussed above we are of the firm opinion that the prosecution has bitterly failed to prove the charges levelled against him and we therefore by accepting this appeal set aside the impugned judgment of the trial court dated 20-08-2014 and direct release of the appellant forthwith if he is not required in any other case.

30. The murder reference is answered in negative.

31. Above are the detailed reasons of our short order dated 19-05-2016. File. HBT/141/GB Appeal accepted.