2013 PLP 241 (YLR)

ASSADULLAH KHAN CHAMKANI, J.

The appellants Waqif Khan and Shams-ur-Rehman faced trial in case F.I.R. No.457 dated 23-5-2007 registered for offence under sections 324/34 P.P.C. at Police Station Badhber District Peshawar and after having been found guilty by learned Additional Sessions Judge-VI, Peshawar vide judgment dated 15-6-2012, they were convicted and sentenced to seven years' rigorous imprisonment each with a fine of Rs.30,000 each or in default thereof to suffer three months' simple imprisonment, however, benefit of section 382-B Cr.P.C. was extended to them.

2. The contents of F.I.R. reveal that the complainant Nasrullah while in injured condition at LRH, Peshawar reported the matter to the police, in terms, that on the eventful day at the relevant time he came out of his house for duty and was standing in the main gate of the house along with his brother, namely, Noroz Khan, his father Ibrahim Khan and relative Ulas Khan son of Hukam Khan when in the meantime the appellants came there duly armed and started firing at them as a result he and his brother Noroz Khan were hit while his father and relative Ulas Khan escaped unhurt. Ibrahim Khan and Ulas Khan were cited to have witnessed the crime. Motive for the crime was stated dispute over landed property, hence the case was registered against the appellants.

3. After completion of investigation challan was submitted in the court against the appellants for trial. The prosecution in support of their case produced eight witnesses in all. It merits mention here that at the trial one of the accused, namely, Iftikhar died and proceedings against him stood abated. The gist of prosecution evidence is as under.

4. Ibrahim Khan father of the complainant appeared as P.W.1, who stated that on the day of occurrence it was morning time and they were standing in front of their house when in the meanwhile the accused came there and started firing at them as a result his son P.W. Nasrullah Khan and P.W. Noroz Khan were hit and sustained injuries while he and P.W. Ulas Khan escaped unhurt.

5. Noroz Khan appeared as P.W.2, who stated that on the day of occurrence he along with his father, brother and relative were standing in front of their house when in the meantime the accused came there and started firing at them as a result he and his brother got hit and received injuries while P.W. Ibrahim Khan and Ulas Khan escaped unhurt.

6. P.W.3 is Nasrullah Khan (complainant), who stated that on the day of occurrence at the relevant time, he along with his brother Noroz Khan, father Ibrahim Khan and relative Ulas Khan were standing in front of their house when in the meanwhile the accused came there and started firing at them as a result he and his brother were hit and sustained injuries while Ulas Khan and his father Ibrahim Khan escaped unhurt. He made the report in the casualty of LRH, Peshawar vide Exh.PA/1.

7. Ikramullah Moharrar investigation appeared as P.W.4, who deposed that during the days of occurrence he was posted at Police Station Badhber as Moharrar investigation. He is the marginal witness to the recovery memo Exh.P.W.4/1 vide which the I.O. Shaheenullah took into possession two kalashnikovs produced by Abdus Sattar Moharrar Operation. The said kalashnikovs were recovered from accused Waqif Khan and Shams-ur-Rehman and were sealed into parcel Nos.4 and 5, respectively in his presence.

8. P.W.5 is Muhammad Kamal Khan, Inspector who stated that during the days of occurrence he was posted as S.H.O. Police Station Badhber and after completion of investigation submitted complete challan against the appellants Waqif Khan and Shams-ur-Rehman while challan under section 512 Cr.P.C. against the accused Iftikhar (later on died).

9. Lalzada Khan, S.-I. appeared as P.W.6, who stated that on receiving information regarding the occurrence, he rushed to the casualty of LRH, Peshawar and prepared the injury sheet of injured Nasrullah which is Exh.P.W.6/1 and of injured Noroz Khan, which is Exh.P.W.6/2. Thereafter, he drafted murasila Exh.PA/1 on the report of the complainant injured Nasrullah, which was read over and explained to him and after admitting it to be correct thumb impressed the same and thereafter it was sent to the Police Station for registration of the case.

10. Shaheenullah Khan, S.-I./I.O. appeared as P.W.7, who was posted as A.S.-I. at Police Station Badhber during the days of occurrence. He was entrusted investigation of the case and after receiving copy of the F.I.R., went to the spot, where he was informed that the injured had been shifted to LRH, Peshawar where both the injured handed over him the blood-stained shalwars and prepared recovery memo Exh.P.W.1/2 in this regard. From the hospital, he accompanied the eye-witnesses to the spot where he prepared the site plan Exh.PB at their instance. During spot inspection, he recovered and took into possession 20 empties of 7.62 bore and sealed the same into parcel vide recovery memo Exh.P.W.1/1. Vide his application Exh.P.W.7/1, he sent the blood-stained shalwars to the FSL for analysis. He recorded statements of the P.Ws. under section 161 Cr.P.C., the kalashnikovs Exh.P1 and Exh.P2 recovered from the appellants were handed over to him along with the accused, which he took into possession vide recovery memo Exh.P.W.4/1. Vide Exh.P.W.7/2 he sent the said kalashnikovs to the Fire-arm Expert for examination and opinion and the report thereof is Exh.PZ, whereas the report of blood-stained shalwars is Exh.P/1. Vide his application Exh.P.W.7/3, he applied for police custody of the appellants Waqif Khan and Shams-ur-Rehman before the JMIC concerned, which was accepted and one day custody was granted. He interrogated the appellants, recorded their statements under section 161, Cr.P.C. and thereafter vide his application Exh.P.W.7/4 he produced the accused before the JMIC for judicial remand, which was allowed and the accused were remanded to the judicial lock up. Vide his application Exh.P.W.7/5 and Exh.P.W.7/6, respectively he applied for issuance of warrants under sections 204 and 87, Cr.P.C. against the accused Iftikhar (later on died) and handed over to the DFC for execution. After completion of investigation, he submitted the case file to S.H.O. concerned for onward submission.

11. Waris Khan, Inspector appeared as P.W.8, who submitted supplementary challan against the dead accused Iftikhar.

12. After completion of prosecution evidence, statements of appellants under section 342, Cr.P.C. were recorded, to which they professed innocence and wished not to be examined on oath nor desire to produce evidence in defence. The trial culminated in conviction and sentence of the appellants as mentioned, hence this appeal.

13. Learned counsel for appellants contended that the statements of P.Ws. are clashing with each other, hence wrongly relied upon by learned trial Court. He was of the view that the site plan do not support the prosecution version and that the Medical Officer has not been produced and that the defence plea taken by the appellants has not been accepted by learned trial Court for valid reason and that the appellants were convicted on high flimsy and interested evidence of P.Ws., which is bad in the eyes of law and that there is no criminal history of involvement of appellants in the past, therefore, the conviction and sentence recorded by learned trial Court are not well founded, hence the same require to be set at naught.

14. Learned counsel for complainant assisted by learned State counsel while rebutting the arguments from other side contended that the appellants are directly nominated in the first report and that the Medico-legal Report coupled with statements of P.Ws. support the prosecution version as well as recovery from the place of occurrence and weapons of offence from the possession of appellants, which as per FSL report matched with the weapons recovered from the appellants and that motive has been established and being a day light occurrence question of mistaken identity did not arise, therefore, on the available record the appellants were rightly convicted and sentenced by learned trial Court. I have heard learned counsel for the parties and gone through the record available before me.

15. In this case, P.W.3 Nasrullah son of Ibrahim lodged a report in injured condition at casualty of LRH, Peshawar, which was recorded by P.W.6 Lal Zada Khan, Traffic Inspector. The occurrence has taken place at 9-30 a.m. on 23-5-2007. P.W.1 Ibrahim Khan son of Azam Khan father of Nasrullah complainant P.W.3 appeared in court and stated that on the day of occurrence it was morning time and they were standing in front of their house when the crime took place, so he did not specify the time of occurrence. He further stated that his statement was recorded by the I.O. in the village on the spot at 9-00/9-30 a.m. Similarly, P.W.2 Noroz Khan son of Ibrahim Khan stated in his court statement that on the day of occurrence he along with his brother Nasrullah and father Ibrahim Khan were standing in front of their house when in the meanwhile appellant Waqif Khan, Shams-ur-Rehman and Iftikhar came there and started firing at them. P.W.6 Lal Zada Khan, SI/Traffic Inspector in the court statement he stated that on the day of occurrence he was on routine patrolling with other police party when received information that an injured is lying in the casualty LRH, Peshawar and the police officials deputed in the casualty are pre-occupied in the evidence before the competent court, on this he rushed to the casualty where prepared the injury sheets of the injured firstly of Nasrullah, which is Exh.P.W.6/1 then of the injured Noroz Khan Exh.P.W.6/2 and thereafter drafted murasila Exh.PA/1 on the report of the complainant/injured Nasrullah. In cross-examination this witness stated that it was round about 9-00 a.m. when the information regarding the presence of the injured in casualty at LRH was conveyed to him and was on gusht near about Namak Mandi Bazar, Peshawar. He reached to the casualty LRH in 20 minutes. So keeping in view the testimony of the P.Ws. mentioned above, the prosecution could not establish the actual time of occurrence rather prosecution evidence regarding the time of occurrence is contradictory as such caused serious doubt upon the prosecution story. No doubt, P.Ws. 2 and 3 both real brothers sustained fire-arm injury but injuries only indicate their presence at the spot, hence are not affirmative proof of their credibility and truth.

16. I agree with the proposition that site plan is not a substantive piece of evidence but only that of first reflection of the spot, which furnishes a panoramic view of the crime.

17. While assessing/scanning the prosecution evidence, the site plan cannot be ignored which is a very important piece of evidence. Now from the perusal of site plan Exh.PB, Point No.1 indicates the place of injured Nasrullah (complainant), Point No.2. indicates the place of injured Noroz Khan brother of complainant and Point No.3 indicates the place of P.W. Ibrahim Khan father of P.Ws. Nasrullah and Noroz Khan, Point No.4 indicates the presence of abandoned witness Ulas Khan, Point No.5 indicates the place of appellant Waqif Khan while at Point No. 6 is dead accused Iftikhar, Point No.7 indicates the presence of Shams-ur-Rehman/appellant. The distance between Point 1 and 2 comes to one pace, from Point 1 to 3 four paces, from Point 1 to 4 to five paces and from Point No.1 the place of appellants are 25 paces. This site plan was prepared on the pointation of eye-witnesses and during spot inspection the I.O. recovered 20 empties of 7.62 bore lying in scattered position. There is nowhere mentioned in the site plan that the blood was recovered from the place of injured P.Ws. Nasrullah and Noroz Khan or from Point 1 and

2. The boundary wall of the house of the complainant and P.Ws. 4 and 3 was also in the firing range if someone fire from Point 5, 6 and 7 with Klashnikov but none of the P.Ws. i.e. P.Ws. 3 and 4 received any bullet injury nor the bullet marks were detected by the I.O. on the boundary wall of the house of complainant. No spent bullet was recovered from the spot, which shows that the site plan does not support the prosecution version. P.W. Nasrullah/complainant received fire-arm entry wound on the left side of his knee about 3-4", so there was only one shot, which is too on non-vital part of the body. P.W. Noroz Khan received fire-arm entry wound on left interior thigh and also on right interior knee 3 cm. The nature of injuries were not given by the doctor. Furthermore, the doctor examining the said P.Ws. was not produced by the prosecution to prove his Medico-legal Reports. The non-examination of the doctor shows the mala fide on the part of prosecution, which prejudiced the accused/appellants, so adverse inference must be drawn against the prosecution. The story put forward by prosecution is not supported by site plan and medical evidence. It has come in the evidence of P.W.1 Nasrullah at page-3 that the appellants started firing from a distance of ten paces from the right side. Similarly, P.W.2 Noroz Khan in his statement stated that it is correct that his brother Nasrullah, who is serving in PTCL, was going for his official duty and besides him, P.W. Ibrahim and Ulas Khan were standing with him on the road side. He further deposed in the evidence that they were fired by the accused/appellants hand by hand. P.W.1 Ibrahim Khan in court statement stated that his sons were going for their duties and were waiting for the arrival of the vehicle on main Kohat road. Further stated that the empties were recovered from one and other side of the road. Further stated that the injured were lying on the spot for 1, 2 or 3 minutes, however, they were shifted to the hospital by their relative. P.W.3 Nasrullah stated in court statement that the accused were standing side by side to each other on the road side and similarly we were also standing to the other. So the statements of P.Ws. 1 to 3 are unanimous to the effect that the alleged occurrence took place on the road side while the site plan indicates, which was prepared at their pointation, and the I.O. also confirmed that the place of occurrence is in front of the house of the complainant. The road side is towards the East on Kohat/Peshawar road from the house of the complainant, so keeping in view the above testimony of P.Ws. 1 to 3 even the place of occurrence is doubtful. In the nutshell, the medical evidence and the site plan do not support the ocular evidence furnished by P.Ws. 1 to

3. Regarding the crime empties and FSL report Exh.PZ, the 20 crime empties recovered from the spot along with weapons allegedly recovered from the two appellants were sent to the laboratory and it was opined that ten 7.62 MM bore crime empties were fired from SMG Rifle No.18017281 and two empties marked C11 and C12 were from 7.62 MM bore SMG Rifle No.00692. The FSL report was offered by the prosecution as a piece of corroborating evidence but in the instant case this piece of evidence could not be believed for so many reasons. The appellant Waqif Khan was arrested by the police vide F.I.R. No.466 dated 25-5-2007 under section 13 A.O. while the other appellant Shams-ur-Rehman was apprehended in connection with F.I.R. No. 467 dated 25-5-2007 under section 13 A.O. and from both the accused two kalashnikovs were recovered. 20 empties of 7.62 bore were already recovered by the I.O. on 23-5-2007, which were lying in the Police Station Badhber. It was the duty of the I.O. to have immediately sent the empties to the FSL laboratory for safe custody or for the test purpose. The proposition that the empties should be immediately sent to the FSL laboratory and the same should not be kept in Police Station. In this case, the empties recovered were lying in the Police Station for indefinite period and the I.O. was waiting for the recovery of weapons of offence and when he succeeded, then the said empties and the recovered weapons were sent to the laboratory, which was received on 8-6-2007, so there is inordinate delay in sending the crime empties and weapons, which has not been explained by the prosecution. Moreover, the prosecution could not justify that for what purpose the empties were lying in the Police Station. So, in the circumstances, this piece of evidence is not credible and is of no assistance to the prosecution against the appellants. Keeping in view the above facts and circumstances, I am of the considered view that the prosecution has miserably failed to bring home charge against the appellants. The case is full of contradictions. The manner of occurrence also appears to be doubtful and the charge is also exaggerated one. As far as the motive advanced by the prosecution is concerned, the same has not been established by the prosecution for the reason that no jirga member was produced at the trial. For the aforementioned reasons, this appeal is allowed. The conviction and sentence of the appellants are set aside. They are acquitted of the charges levelled against them and be set at liberty forthwith if not required in any other case. Criminal Miscellaneous 188-P of 2012 having become redundant also stands disposed of. Above are reasons for the short order of even date. HBT/293/P Appeal allowed.