P L D 2009 Peshawar 44 (PLP)

TARIQ PARVEZ KHAN, C.J.

Abdul Ghani appellant stands convicted and sentenced to life imprisonment oti 13-3-2006 by Additional Sessions Judge at Peshawar. He has also been ordered to pay fine of Rs.50,000 or in default to suffer further six months' S.I. and was also liable to pay Rs. one lac to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C.

2. Deceased of this case is Hafizullah who was done to death on 11-11-1998 at 9-20 p.m. in the territorial jurisdiction of Police Station Gulbahar, District Peshawar.

3. Report was made by Muhammad Sharif P.W.6 recorded at 9-55 p.m. in the Casualty Ward of Lady Reading Hospital Peshawar where he has taken the deceased. His report was recorded by Muhammad Gul P.W.7.

4. According to the F.I.R., complainant Muhammad Sharif and deceased Hafizullah were present on the G.T. Road near Petrol Pump when in the meanwhile, a white colour motor car came there. There were three persons sitting in the car, two persons got down and went towards the Rickshaw which was parked nearby. It is alleged that the two persons who got down from the car, started teasing the woman who was occupying the Rickshaw which was taken 'exception by Hafizullah deceased who forbade them not to tease the woman which annoyed Latif absconding accused who started abusing the deceased. In the meantime,' second accomplice of Latif got down from the motor car, pulled out his pistol and fired at Hafizullah who was hit, got wounded and the accused party escaped.

5. No one was charged by name except Latif but one thing was clear that three persons were said to be involved in the crime.

6. On 14-12-1998, father of Hafizullah deceased got recorded his statement under section 164, Cr.P.C. and charged the present appellant and Ehsanullah to be the co-accused of Latif. Both Ehsanullah and Latif are proclaimed offenders.

7. It is in the evidence that the appellant surrendered himself not to the Police but to the court of learned Sessions Judge on 14-10-2004 by applying for pre-arrest bail which was allowed but was recalled on 25-10-2004.

8. On 31-10-2004 the police applied for services of a Magistrate for conducting and supervising the test Identification Parade which was held on 1-11-2004 supervised by Mr. Asghar Shah Khilji, Judicial Magistrate whose report about test Identification Parade is Exh.P.W.9/1.

9. At the trial, Muhammad Sharif complainant appeared as P.W.6 and furnished ocular account.

10. Learned counsel for the appellant has argued that Abdul Ghani was not named in the F.I.R. recorded on 11-11-1998 and he was for the first time named after one month by father of the deceased Hafizullah but father of deceased Hafizullah did not appear in the witness box at the trial, therefore, charge is fabricated and not proved. His next argument is that according to the statement of Muhammad Sharif complainant, Abdul Ghani was the accused who made firing at the deceased and that he has fired 4/5 shots but there is only one firearm entry wound with corresponding exit wound which is belied by the medical evidence. His next contention is that the Test Identification Parade in this case will have no legal value and cannot be taken in evidence because it was not only belatedly held when the appellant was arrested on 25-10-2004 and the test Identification Parade was held on 1-11-2004. His next argument was that appellant. remained on pre-arrest bail for nearing two weeks; there would be ample opportunity with the complainant to see Abdul Ghani moving about either in the vicinity of his residence, or in the police station or court premises.

11. Learned counsel for the complainant, however, states that Muhammad Sharif is totally disinterested witness and has no reasons to bring false charge against the appellant. He also argued that the report was promptly lodged and has the complainant party been dishonest, they could have charged Latif for effective shot. His next argument is that appellant remained an out law for nearing six years and has tendered no plausible explanation of his absence. Lastly, it was argued that the test identification parade was conducted under the supervision of a Magistrate where the complainant has correctly identified the present appellant.

12. Learned counsel for the State adopted the arguments advanced by the learned counsel for the complainant and added that the accused/appellant has acted in a cruel manner and that on a very petty matter, he has taken life of an innocent person who had no personal grudge with him but has stopped the accused party not to tease the woman folk.

13. In this case Abdul Ghani appellant is not charged in the F.I.R. except that he was charged on 14-11-1998 by father of deceased but the father did not appear at the trial.

14. No doubt that apparently Muhammad Sharif is an independent witness but evidentiary value of his statement is to be adjudged on the basis of law as laid down by the apex Court and this court qua identification.

15. In this case, accused applied for pre-arrest bail on 14-10-2004 and remained on ad interim pre-arrest bail till 25-10-2004 whereafter he was arrested from the court premises. He was then produced for police custody and after he was finally sent to judicial lock-up; It means that between the date of his ad interim pre-arrest bail i.e. 14-10-2004 and that when he was finally arrested on 25-10-2004, he was moving free and possibility cannot be excluded that he might have been shown to Muhammad Sharif P.W.6 during this period.

16. He was arrested on 25-10-2004 but the identification parade was held on 1-11-2004 i.e. after seven days and this delay in test identification parade has not been explained.

17. Most important would be that in the F.I.R., although the complainant has stated that he can identify the accused/assailant who' fired at the deceased but again he has given no description or features etc. which could make a base for further recognition. Moreover, in the test identification parade, he has only pointed out Abdul Ghani to be an accused but has not specified the role played by him i.e. he has not stated that it was him who had fired at the deceased.

18. Otherwise too, this statement belies the medical evidence and the site plan because if according to the F.I.R., 4/5 shots were made then there should have been more fire-arm injury wounds on the person of the deceased and also there should have same recovery of empties from the spot.

19. Mere fact that a witness is disinterested by itself is not a certificate that what he would speak, would be true unless his statement intrinsically rings true. There is a simple example that where a very responsible and respectable person makes a statement which is not acceptable to common sense, be believed by the court, because the court of law evaluates the evidence on the basis of prudence.

20. In this case, it is belatedly stated that Abdul Ghani was the one who had made firing at the deceased presuming that he was available to the prosecution for the time being qua identification, we would extend benefit of doubt to the accused/appellant.

21. Resultantly, by extending benefit of doubt to the accused/appellant, appeal of the appellant is accepted, the conviction and sentence recorded by the trial court stand set aside and the appellant Abdul Ghani is acquitted of the charge. He be set at liberty if not required in any other case. H.B.T./205/P Appeal allowed.