2017 PLP 17 (YLRN)

QALANDAR ALI KHAN, J.

Since this Criminal Appeal by Babar Naseem, appellant, against his conviction and sentence, Criminal Revision No.39-A/2013 by Sajjad Ahmad, complainant/ petitioner, for enhancement of the sentence of the appellant and Criminal Appeal No.158-A/2013 by the complainant/ appellant against acquittal of respondents Arshad Saleem and Muhammad Bashir Ahmad, vide judgment dated 28.11.2013 of the learned Additional Sessions Judge, Balakot pertain to the same case FIR. No.170 dated 13.07.2010 under sections 302/34, P.P.C., Police Station Khaki, Mansehra, this single consolidated judgment shall also dispose of the aforementioned Criminal Revision as well as the Criminal Appeal.

2. The FIR was lodged on the report of complainant, Sajjad Ahmad, to the SHO Police Station Khaki who reached the spot after receiving information about the occurrence and drafted Murasila on the report of the complainant at 1730 hours on 13.07.2010 about the occurrence which took place at 1600 hours earlier in the day at Achhar Nallah in the limits of Hafeez Bandi situated at a distance of 5/6 kilometers from the Police Station.It was reported by the complainant that the Achhar Nallah was passing near his land wherefrom sand/Bajri was being excavated through tractor along with excavator, whereupon his brother Faisal Waheed Khan reached the said place and tried to stop the convict-appellant, Arshad Saleem alias Tipu and Bashir Ahmad sons of Ghulam Hassan, who were present there for excavation of the sand/Bajri, but the convict-appellant fired at his brother with his pistol, causing him fatal injury leading to his death. According to the complainant, he was also present in his field and reached the spot, where he was abused by Arshad Saleem who also caught hold of him and Bashir Ahmad caused him two injuries on his head with the butt of his pistol. The occurrence was shown to have been witnessed besides him by his brother Shoukat and mother Mst. Pari Jan. The accused, according to the complainant, made good their escape from the spot. The motive for the occurrence was cited as only excavation of sand/Bajri from the said land.

3. The deceased, Faisal Waheed Khan, was referred for postmortem examination to KATH, Mansehra, where the Medical Officer conducted postmortem examination, and furnished the following report:- External examination

1. An entry wound about 1 cm in circumference on mid axillary line on left side of chest at the level of about 5 to 6 intercostal space. Margins inverted charring present.

2. An entry wound on left side of chest on mid axillary line about 1 cm in circumference at the level of about 3 to 4 intercostal space. Margins inverted charring present.

3. Exit wound on right side of chest about 1 cm in circumference at the level of 6 to 7 intercostal space. Margins everted. Internal Examination In the scalp and skull region no injury was found. Walls, ribs and cartilages, pleurae, right lung, left lung, blood vessels were found injured. Chest cavity full of blood. In the abdominal region stomach was found filled with semi digested food particles. Bladder was found empty and not injured. Remarks In the opinion of Medical Officer cause of death of Faisal Waheed Khan, was injuries to both lungs and excessive internal bleeding due to firearm injuries leading to shock and death. Probable time between injury and death: 1/2 hour to one hour and between death and postmortem 3 to 6 hours.

4. The injured complainant was also medically examined and the Medical Officer found the following injuries on him:

1. Lacerated wound on skull, dimension 1" in length, bone not exposed.

2. Lacerated wound on skull below wound No.1 and 1" in length bone not exposed.

3. Bruise on back of right shoulder. Condition of clothes blood stained. Injury was caused with blunt weapon. Probable duration of injuries less than 12 hours. Advised x- ray of skull and right shoulder. Opinion about nature of injury was postponed to the result of x-ray.

5. During investigation, the Investigating Officer inspected the spot and secured blood stained earth from the place assigned to the deceased in the site plan and also one crime empty of .30 bore, giving smell of fresh discharge, from the place assigned to the convict-appellant in the site plan. The blood stained earth and blood stained garments of the deceased were sent to the Forensic Science Laboratory and report of the chemical examiner in respect thereof was received in the affirmative. The convict-appellant and co-accused Arshad Saleem were arrested on 21.07.2010; and a pistol .30 bore was recovered on the pointation of the convict-appellant while he was in police custody, which along with the crime empty was sent to the Firearms Expert, but his opinion was received in the negative. The convict-appellant also lodged report vide FIR No.171 dated 13.07.2010 about injuries caused to him during the occurrence by Shoukat, eye-witness in this case, on his left hand and left leg and also injuries on the head of his brother Arshad Saleem, by Sajjad alias Babu, complainant in the instant case. The I.O. also collected record showing registration of criminal cases on the report of the eye-witness and mother of the complainant namely Mst. Pari Jan. The work order in respect of mining lease in favour of Syed Arif Hussain Shah and other documents showing partnership between Arif Shah and Abid Shahzad were also brought on record. After recording statements of the P.Ws under section 161, Cr.P.C. and completion of investigation, complete challan was submitted to the trial Court, which framed charge against all the three accused under sections 302/34, P.P.C. to which they all pleaded not guilty and claimed trial.

6. During trial, the prosecution examined as many as eleven: PWs, including Muhammad Iqbal IHC (PW-1), Arif Ali Shah MHC (PW-2), Syed Mushtaq Hussain Shah Inspector/Incharge Investigation Circle City, Abbottabad (PW-3), Muhammad Yousaf IHC (PW-4), Doctor Khushi Muhammad, CMO KATH, Mansehra (PW-5), Sajjad Ahmad complainant (PW-6), Mst. Pari Jan widow of Muhammad Rafique, (PW-7), Taj Muhammad SI/OII OS Kaghan (PW-8), Niaz Muhammad ASI P.S. Saddar (PW-9), Abdul Hameed Khan Inspector/CO Allai (PW-10) and Muhammad Bashir No.218/DFC P.S. Shinkiari (PW-11).

7. After prosecution closed its evidence, statements of the accused were recorded under section 342, Cr.P.C, wherein, they refuted the allegations of the prosecution against them, but declined to be examined on oath under section 340(2), Cr.P.C. They, however, produced Waheed, Senior Clerk, Office of Assistant Director, Mineral Development, Mansehra (DW-1) and Chan Israfil, Petition Writer, Mansehra (DW-2) and thereafter closed the defence evidence. After hearing arguments, the learned trial Court/Additional Sessions Judge, Balakot, rendered judgment dated 28.11.2013, whereby, the appellant was convicted for offence under section 302(b), P.P.C. and sentenced to imprisonment for life, and in addition to the sentence of imprisonment, the appellant was also made liable to pay Rs.500,000/- as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. and in default of payment of compensation, the appellant was to undergo further simple imprisonment for six months; while compensation was to be recovered as arrears of land revenue. Benefit of section 382-B, P.P.C. was extended to the appellant for the period undergone by him as under trial prisoner before his release on bail. The other two accused facing trial namely Arshad Saleem and Bashir Ahmad were acquitted of the charges levelled against them by extending them the benefit of doubt. The instant criminal appeal by the convict-appellant, Criminal Revision No.39-A/2013 and Criminal Appeal No.158-A/2013 by the complainant arise out of the same impugned judgment dated 28.11.2013.

8. Arguments of learned counsel for the convict-appellant and acquitted accused/respondents and learned Additional Advocate General assisted by learned counsel for the complainant heard, and record perused.

9. The learned counsel for the convict-appellant argued that there was a delay of 1-1/2 hours in lodging the report to the police on the spot. The learned counsel pointed out that the convict-appellant sustained serious injuries which caused him fracture on left hand and right foot and restricted his movement and also the ability to commit the offence of Qatl-i-amd of the deceased. It was further pointed out by the learned counsel that the prosecution witnesses, including the complainant and both the so-called eye-witnesses, were closely related to each other as mother and the real brothers inter se, therefore, they were interested witnesses and that the non-production of disinterested witnesses like driver of the shovel created serious doubts in the case of prosecution. The learned counsel also referred to the report of Firearms Expert which proved recovery of the empty from the scene of occurrence and alleged recovery of weapon of offence i.e. pistol .30 bore on the pointation of the convict-appellant false and not worthy of consideration against the convict-appellant. The learned counsel contended that for the injuries sustained by the convict-appellant also causing him fractures on his left hand and left foot a cross case was registered wherein Shoukat, the so-called eye-witness in the instant case, and complainant in the case Sajjad and the other so-called eye-witness and mother of the complainant namely Mst. Pari Jan were charged for injuries caused to the convict-appellant and his brother Arshad Saleem. The learned counsel stressed that the learned trial Court failed to determine the aggressor in the cross cases. The learned counsel maintained that there were two versions, one given in the FIR by the complainant and the other by the defence whereby it was claimed that during scuffle between the deceased and the complainant, the pistol of deceased went off and the deceased sustained the fatal injuries with his own pistol. In such a situation, according to the learned counsel, the version favouring the defence is to be accepted by the Court. According to the learned counsel, the presence of charring marks on both the firearm wounds on the body of the deceased supported the defence version. The learned counsel urged that there were material contradictions and improvements in the statements of complainant and so-called eye-witnesses, creating serious doubt in the case of the prosecution against the convict-appellant. The learned counsel further pointed out that the prosecution could not prove ownership of the complainant while, on the other hand, the defence was able to prove that the convict- appellant and others were working on the site under a lease.

10. The learned Additional Advocate General assisted by the learned counsel for the complainant, on the other hand, contended that the convict-appellant was directly charged in the FIR and was assigned the effective role of Qatl-i-amd of deceased brother of the complainant, Faisal Waheed Khan in the presence of the complainant, his other brother and their mother, because of dispute over excavation of sand/Bajri from the land of the complainant. According to them, the postmortem report substantiated allegations against the convict-appellant, which received further corroboration from the case registered on the report of convict-appellant whereby his presence on the spot and involvement in the commission of the offence was proved. They pointed out that recovery of blood from the place assigned to the deceased in the site plan and positive report of the chemical examiner in respect thereof and the blood stained garments of the deceased proved the scene of occurrence, together with recovery of a crime empty of .30 bore which further supported the commission of the offence in the mode and manner narrated by the complainant and the eye-witnesses. It was urged on behalf of the complainant that the commission of offence of Qatl-i-amd of the deceased by the convict-appellant should have attracted the normal penalty of death and, likewise, the other co-accused charged for causing injuries on the head of the complainant should also have been convicted and sentenced.

11. The FIR was, admittedly, lodged after a delay of 1-1/2 hours and that too on the spot by the complainant to the police who reached there after receiving information about the occurrence. In other words, neither the complainant nor his other brother and even their mother, Mst. Pari Jan, who had previously lodged a couple of reports in the Police Station, went to Police Station Khaki situated at a distance of 5/6 kilometers from the spot to lodge the report. The deceased, who, according to the postmortem report died after 1/2-1 hour of sustaining the firearms injuries, was not taken to the hospital for treatment by his two brothers and mother who remained with the dead body on the spot for 1-1/2 hours.

12. Not only the material witnesses of the prosecution are closely related to each other as complainant and the other eye-witness namely Shoukat are real brothers of the deceased and Mst. Pari Jan is their mother, but the statement of the complainant and his mother Mst. Pari Jan were also not found to be consistent and coherent, as improvements were noticed with regard to their presence on the spot at the time of occurrence. In the FIR, the complainant showed his presence in the field at the time of occurrence but in his statement before the Court the complainant stated that it was incorrectly recorded in his report that he was working in his land. He, on the other hand, stated that he along with deceased, his mother Mst. Pari Jan and brother Shoukat went to the field to stop accused from excavation of sand/Bajri from their land. Mst. Pari Jan (PW-7) also negated assertion of the complainant in the FIR to the effect of his presence in the field at the time of occurrence and reaching to the spot therefrom by saying that at that time she along with the complainant and the other eye-witness and his son Shoukat were present in their home, where her deceased son Faisal Waheed came and told them that the convict-appellant and the acquitted co-accused with the help of Shovel were excavating sand and Bajri from their land in Ichhar Nallah and a tractor trolley was also there, whereupon she along with her abovementioned three sons went to the spot. Interestingly, their house does not appear in the site plan wherein the scene of occurrence has been shown surrounded by fields of different land owners. Intriguingly, the driver of shovel shown present on the spot at the time of occurrence was not examined, neither he being an independent and disinterested witness and hence the best possible evidence was produced and the other eye-witness namely Muhammad Shoukat was abandoned by the prosecution, thus leaving the ocular testimony of the complainant (PW-6) and his mother (PW-7), who were not only highly interested but were also not found credible due to aforementioned inconsistencies and discrepancies found in their statements before the Court. With doubts cast on the statements of material prosecution witnesses, the very foundation of the prosecution case was shaken, which could not provide a sound basis for conviction of the appellant. It is noteworthy that even the trial Court discredited the testimony of PW-6 and PW-7 in the following words: "When PW-6 has failed to ensure his steadfastness to the part of his report about the way of his mixing in the tussle at the spot, mere stamp of injuries on his person is not sufficient to make his testimony absolutely believable, as far as omitted part of the charge sheet is concerned. Moreover, testimony of PW-7 as to manner to conduct of PW-6 on the spot is at variance with the conduct PW-6 himself alleged in his report and testimony. Therefore, it is not safe to base the conviction of accused facing trial on testimony of PW-6 and PW-7 being ridden with contradictions." One wonders that if statements of these witnesses were considered not safe to base conviction of accused facing trial; and co- accused Arshad Saleem and Bashir Ahmad were acquitted of the charges levelled against them by extending benefit of doubt to them by the trial Court, then how the learned trial Court could rely on such statements for recording conviction of the convict-appellant.

13. The Medical Officer (PW-5) found inverted charring present on both the entry wounds, indicating firing from a very close range, which runs counter to the probable distance between the deceased and the convict- appellant in the site plan, as distance between point 'A' where deceased was shown and point '4' where presence of the convict-appellant was shown, has not been mentioned in the site plan. In any case, the presence of charring marks on both the entry wounds on the deceased tend to lend support to the suggestion that the pistol went off during scuffle/grappling between the deceased and the convict-appellant, causing fatal injuries to the deceased leading to his death, and thereby casting shadow of doubt on the case of the prosecution. (2011 SCMR 323 {a}). The negative report, of the Firearms Expert about the so-called weapon of offence i.e. 30 bore pistol recovered by the I.O. on the pointation of the convict-appellant while he was in police custody and that of the crime empty recovered by the I.O. during spot inspection created further doubt about the version of prosecution and created space for the version of defence. In such a situation, when there were two versions, one in support of the prosecution case and the other favouring the defence, the one favouring defence is to take precedence in the light of 2010 SCMR 1009 (c) and PLD 1994 SC 31 {b}.

14. The learned Additional Advocate General assisted by the learned counsel for the complainant remained focused on the suggestion made by the defence during the cross-examination of the complainant whereby it was suggested that the deceased was busy in scuffle with the convict-appellant and that during grappling the pistol in the hand of the deceased went off and he sustained injuries on his person at his own hand; and they claimed that the defence thereby admitted the presence of convict-appellant at the spot at the time of occurrence and also commission of offence by him; but they lost sight of the fact that even otherwise the presence of the convict-appellant is not denied by the defence, as a cross FIR No.171 about the same occurrence was himself lodged by the convict-appellant, but with a different version. However, no conviction could be based on such a suggestion by the defence, moreso, when no question was put to the convict-appellant about this suggestion during his statement under section 342, Cr.P.C., in the light of judgments reported as 2010 SCMR 1009 {b} and {d}, 2005 MLD 1603 {Quetta} and 2014 PCr.LJ 11 {Peshawar}.

15. As such, the prosecution miserably failed to bring home charges against the accused facing trial, therefore, the co-accused namely Arshad Saleem and Bashir Ahmad were rightly acquitted of the charges; and conviction of the convict-appellant on the basis of the same evidence would also not be sustainable. The convict-appellant is therefore acquitted of the charges, and he be set at liberty, if not required in any other case.

16. Resultantly, the instant criminal appeal is allowed, Criminal Revision No.39-A/2013 is dismissed together with Criminal Appeal No.158-A/2013 by the complainant against the acquittal of co-accused Arshad Saleem and Bashir Ahmad. ZC/198/P Appeal dismissed.