2017 PLP 160 (YLRN)

QALANDAR ALI KHAN, J.

This criminal appeal under section 410 Cr.P.C. by convict/appellant, Shareef, emanates from the judgment dated 05.11.2013 of the learned Additional Sessions Judge-II, Mansehra, Camp Court Oghi, whereby, the convict/appellant was awarded the normal punishment of death under section 302(b), P.P.C. read with sections 148/149, P.P.C. on two counts for committing Qatl-i-Amd of deceased Muhammad Arif and Ali Gohar. The learned trial Court passed order that the convict be hanged two times by the neck till he is dead. The appellant was further ordered to also pay compensation of Rs.400,000/- on each count to the L.Rs. of both the deceased and that the said compensation shall be recovered in the manner provided for under section 544-A, Cr.P.C. from the property of the convict and in case of default of payment of fine, he shall have to undergo six months S.I. on each count. The trial Court, accordingly, submitted proceedings to this Court for confirmation as required under section 374 Cr.P.C., while informing the accused/appellant that he should prefer his appeal within seven days.

2. The appellant was convicted and sentenced to death on two counts by the learned trial Court in case vide FIR No.152 dated 22.08.2011 under Sections 302/ 324/ 148/ 149, P.P.C. registered in Police Station Darband, District Mansehra, on the report of Jehanzeb, complainant to the police in the Police Station to the effect that at Deegar Qaza Waila on 22.08.2011 he along with his brother Ali Zaman, nephew Ali Gohar, son Muhammad Arif and other co-villagers was waiting for jirga scheduled for compromise between them and Salehkheen etc in criminal cases and were present near the house of Noor Zaman under a tree at a distance of 13/14 kilometers from the police station when the convict/appellant along with his brothers Wazir, Iqbal and Taj Muhammad sons of Lal Khan, Salehkheen and Abdur Rashid sons of Mubeen, Mehmood and Jumma Khan sons of Yousaf, Farooq and Pervez sons of Daud, Maroof son of Gulab, Khawaj and Ayub sons of Kaloo and Taj Muhammad son of Ayub suddenly emerged from behind the nearby trees and started firing at them with their weapons, and that firing of the convict/appellant hit his son Arif on front side of his abdomen and firing of Salehkheen and Wazir proved effective on his nephew Ali Gohar who sustained injury on his head-and both the injured succumbed to the injuries on the spot, while the complainant and rest of his companions escaped unhurt as they took shelter in the nearby houses. The occurrence, according to the complainant, was witnessed by him as well as Hakeem Khan son of Abdul Zaman, Abdul Zaman son of Jehandad, Zar Muhammad son of Wali Dad and Chan Muhammad son of Dost Muhammad. The motive for the occurrence was cited as previous criminal cases between the parties. The accused allegedly made good their escape from the spot.

3. The postmortem examination of deceased Muhammad Arif revealed the following:-- CONDITION OF THE BODY Stout, blood stained clothing present. Moderately developed, rigor mortis within hypostasis 1 x 1 cm entry wound in upper right quadrant of right hip. 2 x 2 cm exit wound 3 inches away from umbilicus on left side in lower part of abdomen with bleeding. In abdominal region, stomach contains gastric juices. Small intestines and their contents; large intestine damaged of lower part of large intestine/ empty. A firearm injury with entry and exit points in right hip and left side of lower part of abdomen with damaged lower part of large intestine and vessels causing severe haemorrhage inside the body. REMARKS In the opinion of Medical Officer, the cause of death was severe(excessive) hemorrhage due to injury to vessels in lower part of abdomen, most probably ilear vessels due to firearm injury. Probable time that elapsed; Between injury and death 1/2 to 01 hours and between death and postmortem 5 to 7 hours. The same Medical Officer furnished the following postmortem report in respect of deceased Ali Gohar: External examination Stout person, clothing ere present with blood stained, rigor mortis was moderately developed, rigor mortis with hypostasis. Injuries Entry wound 3 x 1/2 inch on frontal bone right parietal bone absent (head). Right lobe of brain absent, shattered bone present in brain matter. Rest of the organs were normal. Opinion: In the opinion of Medical Officer, death occurred due to severe injuries to brain by firearm. Probable time that elapsed between injury and death: few minutes and between death and postmortem 5 to 7 hours.

4. During spot inspection, the Investigating Officer recovered twenty crime empties of 8 MM, 7 MM and 7.62 bore from places assigned to accused in the site plan and also secured blood from the places assigned to both the deceased in the site plan prepared by the I.O. after inspection of the scene of occurrence by him. The blood stained garments sent by the Medical Officer after postmortem examination of both the deceased were taken into possession by the I.O. The blood secured from the spot and blood stained garments of the deceased were sent for chemical examination to the Forensic Science Laboratory, Peshawar, wherefrom the result was received in the affirmative. The 7MM Rifle handed over to the I.O. by the father of accused Farooq namely Daud was taken into possession by the I.O. The 7MM bore rifle and the three 8MM bore crime empties were sent to the Firearms Expert and his report revealed that the three 8 MM bore crime empties marked C-1, C-2 and C-3 were not fired from 7MM rifle being of different bore. The police could arrest co-accused Mehmood, Muhammad Iqbal, Rashid, Maroof, Muhammad Ayub and Taj Muhammad on 06.09.2011, while the appellant along with the remaining co-accused remained at large and were, therefore, proceeded against under Sections 204 and 87 Cr.P.C, and challan was eventually submitted against them under Section 512 Cr.P.C. at the time of submission of complete challan against the arrested accused on 13.09.2011. The appellant was subsequently arrested on 18.04.2012 and supplementary challan against him was submitted on 25.04.2012. The appellant along with others was formally charged under sections 302/324/ 148/149, P.P.C. by the learned trial Court/Additional Sessions Judge-II, Mansehra, Camp Court at Oghi, on 20.06.2012, but he pleaded not guilty and claimed trial. During trial, the prosecution produced as many as 10 PWs, including complainant Jehanzeb (PW.1), Zar Muhammad (PW.2) and Abdul Hakim (PW.3), the eye-witnesses mentioned in the FIR by the complainant, Dr. Shafqat (PW.6), who conducted autopsy of both the deceased, Muhammad Nawaz Khan ASI (PW.7), who conducted investigation and Amjad Hussain SHO (PW.9) who recorded report of the complainant. After prosecution closed its evidence, statement of the appellant along with others was recorded under section 342, Cr.P.C., wherein he refuted allegation of the prosecution but declined to be examined on oath under Section 340(2) Cr.P.C. or produce defence evidence. It may be added here that accused Wazir Muhammad and Rashid were murdered during trial and in that respect copy of FIR No. 121 dated 06.08.2013 of P.S. Darband was furnished by Muhammad Naseer DFC (CW1). Therefore, proceedings against them were abated vide order of the trial Court dated 17.09.2013.

5. On conclusion of trial, and after hearing arguments, the learned trial Court/ASJ-II, Mansehra, Camp Court Oghi found the appellant guilty of the charges levelled against him and convicted and sentenced him as mentioned hereinabove; hence this appeal. It needs be mentioned here that vide the same impugned judgment dated 05.11.2013, the learned trial Court acquitted co-accused Maroof son of Sikandar, Taj Muhammad and Iqbal sons of Lal Khan, Ayub son of Kaloo, Farooq son of Daud, Khawaj Muhammad son of Kaloo, Taj Muhammad son of Ayub and Juma Khan son of Yousaf, and also acquitted the appellant under section 324, P.P.C.; while declared absconding accused Salehkheen son of Mobeen, Parvez son of Daud and Mehmood son of Muhammad Yousaf as proclaimed offenders and issued perpetual Non-bailable warrants of arrest against them.

6. Arguments of Mr. Muhammad Arshad Awan, Advocate, learned counsel for the appellant, and learned Additional Advocate General for the State assisted by Mian Waheed Anwar Advocate, learned counsel for the complainant heard, and record perused.

7. No doubt, the convict/appellant along with 13 others was directly charged by the complainant, Jehanzeb for the Qatl-i-Amd of his son Arif and nephew Ali Gohar at 'Deegar Qaza-Waila' in his report at 1930 hours on the day of occurrence i.e. 22.08.2011. The motive for the commission of the offences by the appellant and other co-accused was cited as previous criminal litigations between the parties, for the resolution of which a jirga was convened and the complainant along with both the deceased Ali Gohar and Muhammad Arif, his brother Ali Zaman were waiting for the arrival of jirga members under a tree near the house of Noor Zaman. The complainant, in the FIR, attributed the effective role of firing at his son Arif to the appellant while ascribing the role of Qatl-i-Amd of Ali Gohar by effectively firing at him to absconding accused Salehkheen and deceased accused Wazir.

8. The cracks in the edifice of the prosecution case started emerging from the very inception as the complainant alleged in the FIR that his son Arif sustained fire arm injury on his front abdomen, while deceased Ali Gohar received fire arm injury on the front of his head; but the P.M examination of deceased Muhammad Arif showed 1 x 1 CM entry wound in upper right quadrant of right hip with corresponding 2 x 2 cm exit wound 3 inches away from umbilicus on left side in lower part of abdomen. The P.M. examination of deceased Ali Gohar also showed entry wound 3 x 1/2 inch on frontal bone right parietal bone absent (head), Right lobe of brain absent, and shattered bone present in brain matter. As such, the P.M report was not inconfirmity, rather contradicted the FIR, while showing entry wound on deceased Muhammad Arif on back side right hip instead of front abdomen as alleged by the complainant in the FIR. The other glaring contradiction surfaced in the site plan where the complainant had been shown at a distance of 26 paces from his deceased son Muhammad Arif and 50 paces from deceased Ali Gohar as against the fact alleged in the FIR that they all were waiting under a tree for arrival of the jirga members near the house of Noor Zaman. Although the nature of weapons used in the commission of the offence has not been mentioned in the FIR, yet the recovery of crime empties of 8 MM from the place assigned to the appellant in the site plan ought to raise questions about entry wound of 1 x 1 cm on deceased Muhammad Arif from a distance of 25 paces. It is also something far from convincing that the complainant was able to identify the appellant and charged him for effective firing and Qatl-i-Amd of his son Arif during indiscriminate firing simultaneously by 14 persons, which did not cause even a scratch on his person or on his companions, who escaped unhurt, and only the two deceased fell victim to the numerous fire shots.

9. The three 8 MM bore crime empties, including two 8 MM bore empties recovered from the place assigned to the appellant in the site plan were sent to the firearms expert along with one 7 MM bore rifle handed over to the I.O. by the father of acquitted co-accused Farooq; but result of the firearms expert in this regard was received in the negative. It is, indeed, something beyond comprehension that on the basis of the same evidence 8 accused who were also assigned the role of simultaneously opening firing at the complainant and his companions including the two deceased, were acquitted of the charges, while the appellant was awarded the capital punishment of death, notwithstanding the effective role of Qatl-i-Amd of deceased son of the complainant, which also could not, possibly, be imputed to the appellant in the circumstances explained above. Besides, the motive, though not independently established, nevertheless, being double edged weapon could not be the sole ground for conviction of an accused when there is no confidence inspiring evidence corroborating the version of the prosecution.

10. The witnesses examined by the prosecution in support of its case left much to be desired, as noticeable improvements and contradictions came to the surface. The complainant (PW.1) did not mention the nature of weapons of offence with which the accused were allegedly armed, but in his statement in the Court he stated that the appellant resorted to firing with 8 MM rifle which hit Arif on his abdomen. The PW mentioned the name of only absconding accused Salehkheen who fired at Ali Gohar which hit him on head (left side), but in the FIR he had mentioned the names of both Salehkheen and Wazir who fired at Ali Gohar. In the FIR, the complainant also mentioned the presence of other co-villagers on the spot at the time of occurrence, but in the statement before the Court he stated that except him and the persons mentioned in his examination in chief nobody from the village was present there. He reiterated that as a result of firing by the accused both the deceased 'dropped' at the place where they were sitting, but in the site plan, the complainant and the deceased have been shown at quite considerable distance from each other. The PW also admitted that the accused made about 100/200 fires but he failed to explained that how he and his other companions escaped unhurt and further that how he could identify each of the 14 accused immediately before sunset and assign specific role to the appellant and other co-accused during such an indiscriminate firing when he and other companions were running for shelter. It is also a mystery that the PW could even notice the nature of weapon of offence with each of the accused from such a long distance when the visibility was also comparatively poor at the sunset time. The PW was also found not consistent about the distance between him and the accused. PW Abdul Hakeem, mentioned as eye-witness in the FIR, also contradicted the version of FIR by saying that Ali Gohar died at the spot and Arif died on the way when they were being taken to hospital, as in the FIR the complainant stated that both the injured succumbed to the injuries on the spot. However, the Postmortem report of deceased Muhammad Arif shows probable time between injury and death as 1/2 to 1 hour and that of Ali Gohar few minutes. The probable time between death and Postmortem in both the cases has been shown the same i.e. 5 to 7 hours. PW Abdul Hakeem admitted the fact that I.O was told by the villagers that the occurrence took place in the dark hours after 'Namasha-Waila'. He further admitted that the dead bodies were found from the fields. It may be pointed out that both the witnesses, namely Zar Muhammad (PW.2) and Abdul Hakeem (PW.3), produced by the prosecution in support of its case, are closely related to the complainant, hence interested; and despite the fact that presence of other co-villagers was shown in the FIR at the time of occurrence, none came forward to depose in support of the case of the prosecution.

11. The case of the prosecution against the appellant was, as such, replete with discrepancies and doubts, not warranting conviction of the appellant, let alone award of death sentence to him on the basis of evidence which could not persuade the learned trial Court to convict majority of the co-accused who were acquitted in the case.

12. Consequently, on the acceptance of the appeal by the convict/appellant the judgment of the learned trial Court/ Additional Sessions Judge-II, Mansehra, Camp Court Oghi dated 05.11.2013, thereby recording the conviction of the appellant and awarding him the punishment of death, are set aside, and the appellant is acquitted of the charges levelled against him. He be set at liberty if not required in any other case. The murder reference is, accordingly answered in the negative. JK-207/P Appeal accepted.