2003 PLP 2995 (YLR)

Learned Advocate for the appellant contended that the Court below has drawn wrong conclusion from evidence on record and misread the evidence as whole. He contended that Imran and Sadiq were eye witnesses having no enmity against the accused who unequivocally stated that the deceased Abdul Hameed was run under the vehicle driven by the accused respondent Muhammad Akhlaq. He also contended that immediately after the accident Akhlaq‑‑ accused‑‑‑and Muhammad Sadiq again went to the Ghrat of Muhammad Amir and told him of the accident where Muhammad Azeem was also present. Ameer and Azeem testified the statements, that Akhlaq stated before them on the night of occurrence that accident has taken place on the road. According to the learned Advocate, statements of eye‑witnesses are supported by the statements of Ameer and Azeem besides recovery of blood‑stained clothes made on pointation of the accused from his house and the Chemical Examiner has testified the blood thereon as human blood. He also stated that the doctor, in his statement, unequivocally stated that the cause of death of the deceased is breaking of head by tyre. The learned Advocate contended that chain of evidence against the accused is so connected that the case stands proved against him without any shadow of doubt. The Assistant Advocate‑General‑‑‑Mr. Ajaz Gilani‑‑‑supported the arguments advanced by the learned counsel for the appellant. He contended that chain of evidence is so connected that no iota of doubt arises in not believing that the accused has committed the offence. He contended that investigation is conducted by two officers one after other and the evidence collected by both directly connects the accused with the commission of offence. According to him the trial Court has misread the police diaries, which were never tendered in‑evidence by the prosecution. The learned Advocate appearing for the accused contended that two F.I.Rs. were registered in the case; first on 18th November, 1994 and second on 2nd December, 1994. Nobody is nominated in the first F.I.R. while the accused is maliciously nominated m the second F.I.R. He contended that the statements of Muhammad Sadiq and Imran have been manoeuvred by undue influence and coercion. Substantiating the arguments, he contended that the police diaries contain notes of investigation which reveal that nothing was stated by Sadiq and Imran when they were interrogated by Investigation Officers on 20‑11‑1999 and 21‑11‑1999. He contended that the statements of Imran and Sadiq under section 161, Cr.P.C. were recorded on 2‑12‑1994 and 6‑12‑1994 respectively. According to him, both the above‑referred witnesses were interrogated by the Investigation Officer but nothing could be extracted to implicate the accused in commission of the offence and later statements attributed to their are manoeuvred under coercion when the investigation was taken over by the Investigation Officer. He also contended that Imran is a student whose eye‑sight is weak and he cannot recognize anybody at a length beyond ten to fifteen feet and he has admitted so in his statement, while Sadiq is deaf and dumb person. According to observation of the trial Court, he appears to be idiot on whose statement no reliance can be placed. The learned counsel also contended that entire case based on these two witnesses is doubtful, hence, no conviction can be based on the basis of this doubtful evidence. He placed reliance on 2001 PCr.LJ 304 contending that evidence for capital punishment must be unambiguous and clear. He also contended that assuming these two witnesses to be eye witnesses they are interested witnesses as one is stated to be conductor of the jeep while the other is loader, hence, they are not reliable. He placed reliance upon 2000 PCr.LJ

325. He further contended that motive of the offence attributed against the accused is so weak and belated that it cannot be believed to be sufficient for commission of heinous offence. He placed reliance upon 1999 PCr.LJ 735 and 1999 PCr.LJ 1816. He also contended that the recovery in the case has been made after a month of the occurrence and there is no report of Serologist, hence recoveries cannot be relied upon. He relied upon 2000 PCr.LJ

216. After hearing the learned Advocates for the parties, I have gone through record of the case as well as police diaries. Perusal of the record reveals that the occurrence took place on evening of 18‑11‑1994 and its report was made by Bashir Kiyani when he received information on telephone. He was Incharge S.H.O. of Police Station, Dhirkot in the absence of Raja Nazir Khan, who, was on leave and resumed his duty on 30‑11‑1994. Another report of the same occurrence, was made by Mumtaz Khan‑‑‑appellant on 2‑12‑1998 specifically alleging that the accused has killed his father by running him under, jeep on account of old family animosity. A case was registered against accused on this report. The rest of the investigation was conducted, completed and report on the basis thereof was filed by him before the trial Court, which culminated into impugned decision. Perusal of the police diaries from 18‑11‑1994 to 30‑11‑1994 reveals that different persons were taken into custody by the police, for interrogation especially drivers of all the vehicles which plied on this road on the day of occurrence. Witnesses Imran and Sadiq who were on the jeep with the accused person were also interrogated. The statements of Imran and Sadiq under section 161, Cr.P.C. were recorded on 2‑12‑1994 and 6‑12‑1994 respectively. The police diaries do not find mention of any earlier statements of these two witnesses, recorded by Bashir Kiyani, Incharge S.H.O., on which reliance is placed by the trial Court. They are produced as eye witnesses of the occurrence. Sadiq Hussain in his statement recorded on 23‑10‑1995 by the trial Court stated that he alongwith Imran were taken by Akhlaq‑‑‑accused for bringing flour from Jhala Ghrat'. According to him, they went on the Ghrat and saw two persons there. Nine bags of flour were loaded by them and when they were going back, Akhlaq‑accused who was plying the jeep ran the vehicle on a man on diversion near slide who died on spot and the person killed was recognized by him as Abdul Hameed belonging to his village. The driver went ahead but again returned and dead body was taken away from view by him. He (accused) also intimidated him (witness) not to reveal the incident to anybody, and if revealed, he will be shot dead. He was cross‑examined at length but nothing contradictory was extracted from him. The trial Court has not relied upon this witness on the ground that he appears to be idiot and not capable of stating or understanding anything; and that he is in his earlier statement before police has not implicated the accused. No such earlier statement has been confronted or put to this witness nor is placed on record to believe that he is lying before the Court. There is nothing on record to believe or assume that he is an idiot or lunatic, except the observation of the Judge, while the evidence of the witness is confidence‑inspiring. Imran son of Gulzar other eye witness has also made similar statement that he alongwith Sadiq went with Akhlaq to Jhala Ghrat, who loaded some flour on the vehicle and then went towards other Ghrat towards Bagh and while going, a man was run under the vehicle driven by Akhlaq. He told them not to reveal the incident to any person. He was also cross‑examined at length. He stated that his eye‑sight is weak, he can see a person but cannot recognize him at the distance of more than fifteen feet. The trial Court has not believed these witnesses stating that they did not reveal the incident to anybody till their statement was recorded by the Investigation Officer under section 161, Cr.P.C. Additional reason given for not believing Imran is that he stated that the accused was wearing black clothes on, the night of occurrence while clothes were yellowish. These two witnesses alongwith the accused were together right from Dhirkot where they took tea at the hotel were Hidayat Ullah son of Ali Muhammad prosecution witness was working. He (Hidayatullah) stated that the accused alongwith the above witnesses were talking that they are going to Jhala to bring flour and they left towards Jhala on jeep after taking tea from the hotel. Presence of these two witnesses alongwith Akhlaq at the time of occurrence is also testified by prosecution witnesses‑‑ Muhammad Amir and Muhammad Azeem sons of Kalu who are owners of the Ghrats. Muhammad Amir in his statement recorded by the trial Court on 19‑8‑1998 stated that Akhlaq Ayyub came on his Ghrat on November 17, 1994 alongwith another person (who was Sadiq alias Kalla) and both of them took bags of flour. According to his statement his brother Azeem was also with him in the Ghrat. He stated that Akhlaq again came on his Ghrat and stated that an accident has taken place, hence, he will not take rest of flour from other Ghrat and will take after it after two or three days. This is also testified by Azeem prosecution witness in his statement before the trial Court. In view of continuous company of the witnesses with the accused throughout, their statements unambiguously connect the accused with the occurrence, the statements being confidence‑inspiring and there being no enmity of the witnesses with the accused, there appears no reason not to accept the eye witness account of occurrence. The reason that their statements were recorded on 2nd and 6th of December, much after occurrence, cannot be a ground for discarding their statement. The statements of five witnesses corroborate each other as far as plying of vehicle by Akhlaq, being accompanied by Sadiq and Imran, having gone and taken flour from Ghrat, and accident having taken place during this course, is concerned. As to who was killed and by whom, it is established by statements of two of them i.e. Imran and Sadiq who were on the vehicle of Akhlaq Sadiq recognized the deceased as Abdul Hameed belonging to his village who was run under the vehicle by Akhlaq, while Imran corroborated him that a man was run under the vehicle by the accused‑‑‑Akhlaq. Recovery of blood‑stained clothes vide Exh.P.B. was made on the pointation of accused ‑‑‑Akhlaq from his house. The contention which is deemed as a substantial doubt by the trial Court has arisen out of statement of Imran that the accused was wearing black clothes at the time of occurrence while yellowish on the other day. Whether the accused was wearing clothes when the occurrence took place and yellow on the next day hardly makes any doubt as blood on the clothes of the accused is testified by the Chemical Examiner to be human blood. No enmity is alleged or proved against the witness. The recovery made on the pointation of the accused is witnessed by Hanif son of Muhammad Nazir besides Ashfaque‑‑‑Police Head Constable, prosecution witnesses. Raja Nazir Khan‑‑ S.H.O.‑‑‑who completed investigation, has made an elaborate statement before the Court on 25‑5‑2000 connecting every knot of the chain. He is subjected to severe cross examination by the accused, but the chain of facts is not shaken. It is apparent from perusal of the police diaries that first investigation officer of the case ‑‑‑Muhammad Bashir Kiyani, Incharge S.H.O. was investigating the case on account of Raja Nazir Khan ‑‑‑S.H.O.‑‑ being on leave, who resumed duty on December 1, 1994. Immediately after assuming duty he recorded statements of witnesses under section 161, Cr.P.C. No enmity is alleged or attributed against S.H.O.‑‑‑Raja Nazir Ahmad Khan, Investigating Officer by accused. Moreover he (accused) was under investigation from beginning. The reason for not believing Sadiq that he is idiot/lunatic is also not borne out from record as there is no opinion or certificate of the doctor nor is any inquiry made to that effect. The only ground cited for deeming him as idiot/lunatic is that he saluted before the Court and made gestures which did not appeal to mind of the Judge, cannot be held to be a ground to declare or deem the witness as lunatic or idiot while his statement is plain and simple but confidence‑inspiring. Un contradicted plain statement of a common villager cannot be brushed aside for his villagerly gestures not commensurate with the elite. Similarly the reason given for not accepting the statement of Imran is that he cannot recognize a man at the distance of more than fifteen feet, is not sustainable for the reason that the witness cannot recognize a man at the distance of more than fifteen feet but he can see a man. The witness has not stated that it was Abdul Hameed but he has simply stated that a man was run over by the vehicle while other witness i.e. Sadiq has recognized the man run over by the vehicle as Abdul Hameed, who belonged to the witness's village. It is normal course of human behaviour that a senseable man recognizes/identifies his villagers or town mates, moreso, when the villages and towns to Azad Kashmir are neither over‑populated nor migratory inhabitants. People are interknit and interconnected with each other. The accused lead the police party to recovery of clothes at his home which are blood stained and are recovered on pointation of the accused from a box from a room of his house which he only could know and nobody else, hence, there is no reason not to believe the K recovery and recovery, witnesses. The argument that the recovery is effected after a month, does not affect the case which is proved by the eye‑witnesses. The recovery is corroborating the fact deposed by the eye witnesses. Raja Nazir Khan‑‑‑S.H.O. who completed the investigation initiated by Bashir Kiani, has stated that all conductors and drivers of the vehicles plying on that route on the night of occurrence were taken into custody and they were interrogated and the accused was also taken into custody by first Investigation Officer‑‑‑Bashir Kiani. The investigation conducted by both the officers one after other lead them directly towards the accused. In the circumstances of the case every knot of the chain is well connected and set to believe that the deceased Abdul Harried was run under the jeep by accused Akhlaq. However, it does not appear to be a deliberate and intentional murder, but, an, accident having taken place by the negligence in driving the jeep which resulted in causing death of the deceased. As per statements of Sadiq and Imran the deceased was on the road when he was run under the jeep and the accused did not stop after the occurrence but returned from a distance. It implies that he was driving rashly and went ahead, but when he gained control, he came back from a distance towards the dead body which was taken away from the view. Taking away of the dead body from the view does not appear for concealing or causing disappearance of evidence, but just for taking of the dead body from being further mutilated. Flour which the deceased is stated to have taken from Ghrat was also on spot near the road. The deceased appears waiting for a lift when he was run over. It, therefore, does not appear a deliberate and intentional murder. The argument of the learned Advocate that the motive attributed for murder is weak and belated hence not sufficient for commission of heinous offence, need not be attended as the facts and circumstances of the case do not prove the case as of murder but an accident which does not require any intention or motive. In view of above discussion of evidence and circumstances, I believe and hold that the accused‑‑‑respondent is squarely linked with the act of causing death of deceased Abdul Hameed by accident by rash and negligent driving of jeep No.AJK‑4381 owned by him, hence guilty of Qatl‑i‑Khata as defined under section 8 of Islamic Penal Laws Act, 1974. He is therefore, sentenced to Diyat under section 9 of Islamic Penal Laws Act, 1974 and it is ordered that he and his Aaqila shall pay 2,916 (Two thousand nine hundred and sixteen) Tolas 3 (three) Masha silver or Pakistan rupees equal to its market value to the heirs of the deceased Abdul Hameed in equal installments within three years. Aaqila, in this case, would mean only those legal heirs of accused‑‑‑Akhlaq who shall inherit his legacy in case of his death, as he was plying jeep owned by him for his family purposes not as public transport or on behalf of any company, Government or any other person. He is also sentenced to two years' rigorous imprisonment under section 279 of the Penal Code for rash and negligent driving. In case he fails to pay the first installment within one year from today, he shall be arrested and detained in custody till payment. The accused respondent shall be entitled to the benefit of section 382‑B, Cr.P.C. for the sentence passed against him under section 279, Penal Code. Appeal against acquittal allowed accordingly. H.B.T./54/Sh.C.(AJ&K)