2009 P Cr (PLP)

RAJA SAEED AKRAM KHAN, J.

This criminal appeal is directed against the judgment/order, dated 24-7-2004, passed by learned Additional Sessions Judge, Islamabad, whereby the appellant was convicted under section 302(b)/34, P.P.C. and was sentenced to undergo life imprisonment and to pay compensation of Rs.1,00,000, in case F.I.R. No.53 dated 21-3-2000, under sections 302/324/34, P.P.C. registered at Police Station Bhara Kahu (Islamabad).

2. Briefly stated facts of this case, are that the complainant reported the matter to the police that his Bhanja Tanveer Ahmed maintains a tractor along with a Thresher and works with Shahzaib and quite an amount was due towards him (Shahzaib). On' the fateful day, complainant, Tanveer Ahmed, son of complainant Azhar Mehmood were going towards the house of Shahzaib to ask him for the payment, but when they reached near the house of Sher Ali, at about 5-45 p.m. Shahzaib son of Aurangzaib armed with .30 bore pistol, Aurangzaib (appellant) armed with carbine .12 bore and Tayyab son of Aurangzaib armed with a Danda came over there. Aurangzaib (appellant) raised Lalkara telling Shahzaib that Tanveer Ahmed is asking for money almost daily and that he be taught a lesson and they be murdered, upon which Shahzaib fired his .30 bore pistol, hitting Azhar Mahmood, who fell down. Aurangzaib fired with his .12 bore carbine, but luckily they escaped. One Khiazar Hayyat came there listening alarm, who was also injured by Tayyab by inflicting Panda blows. The accused persons fled away resorting aerial firing. Azhar Mahmood was taken towards the hospital in injured condition, but he sutcumbed to the injuries when they reached Alipur. The motive behind the occurrence was that the complainant party was claiming the money towards the accused, for which they had murdered the complainant's son.

3. After completion of investigation, the report under section 173, Cr.P.C. was submitted to the Court. Formal charge against the accused was framed to which he pleaded not guilty.

4. The prosecution, in order to prove the charge, against the accused, produced as many as 16 witnesses along with report of Chemical Examiner Exh.P.T. and report of Serologist Exh. P. U.

5. The appellant/accused was examined under section 342, Cr.P.C. wherein he denied commission of offence. In reply to the question, why this case against you and why the P.Ws. deposed against you, the appellant replied that in fact the complainant party while armed with fire-arms went to the house of my son Shahzaib at a time much later than the alleged time, to forcefully recover the money and in scuffle their arms went off. 'The P.Ws. are interested and inter se related, so they implicated all the male family members.

6. Learned trial Court, after hearing arguments advanced by both sides, passed the impugned judgment/order, whereby the appellant was convicted under section 302(b)/34, P.P.C. and was sentenced to undergo life imprisonment and to pay compensation of Rs.1,00,

000. Hence this appeal.

7. Learned counsel for the appellant has argued that impugned judgment/order is illegal and not sustainable in the eye of law; that the appellant is innocent and has been falsely implicated in this case, but the learned trial Court convicted him vide impugned judgment/order, despite glaring discrepancies occurring in the statements of P.Ws. Learned counsel for the appellants has further argued that for the sake of arguments, appellant has been implicated in this case on account of three allegations, one Lalkara, 2nd fire with his carbine and 3rd abscondance. He stated, that as far as first allegation of Lalkara is concerned, the eye-witnesses i.e. P.W.2, P.W.3 and P.W.4 are not consistent upon the Lalkara raised by the appellant; that all the P.Ws. are closely related, but two of them have not said that the Lalkara of appellant was having direction to put Tanveer to death; that the learned trial Court erred in holding that the appellant raised commanding Lalkara, just relying upon one P.W.2; that in no sense Lalkara allegedly raised by appellant was commanding Lalkara, because it lacks ingredients of commanding Lalkara; that a man of prudent mind cannot believe that a man holding fire-arm was asking his sons, one of whom is juvenile and the other is at the crossing border of said age, to murder Tanveer and why the appellant himself was reluctant to murder Tanveer etc. Learned counsel for the appellant has further argued that as far as fire with carbine by the appellant, is concerned, no injury has been attributed to the said fire, whereas, nothing has been recovered from the place of occurrence even empty of the said fire; that eye-witnesses have been cited as recovery witnesses; that recovery was effected at the time of arrest of appellant, after two years of occurrence; that it is astonishing to note, why appellant was waiting for getting the recovery effected at his house and was unable to dispose of the carbine during a long period; that learned trial Court has disbelieved the recoveries. He has further submitted that as far as abscondance is concerned, there is nothing on record to show that the police seriously tried for arrest of appellant; that no coercive measures had been adopted in this regard; that when the police needed the appellant, they easily went to his house and arrested him, even allegedly along with the weapon of offence. Learned counsel for the appellant has stressed. He has stated that on one and the same set of evidence, co-accused Tayyab has been acquitted of the charge under section 302/34, P.P.C., but appellant has been convicted for sharing common intention with the main accused Shahzaib. He has further submitted that complainant party threw wider net implicating all male members of accused family and all the witnesses implicating them are closely related with each other and complainant also; that the place occurrence was thickly populated one, but no private witness, even formal, has been associated. He has argued that the medical evidence is not established on the record, as the doctor did not appear in the witness-box and even no secondary evidence has been produced on his behalf, nor complainant side moved for permission of secondary evidence; that only notices of doctor were produced by a man, who stated that he did not recognize handwriting of the doctor, as he did not work with him; that no blood was recovered from the place of occurrence or vehicle, in which injured/deceased was put; that no clothes of deceased were taken into possession, but doctor wrote in his report that there were holes in the clothes of deceased, but he did not come in the witness-box and his testimony could not be checked through the test of cross-examination. He has stressed that even contradictions in the statements of Investigating Officer (P. W.14) are sufficient to make this case doubtful. He has pointed out that Investigating Officer stated at the first instance, that he reached Alipur at 5-45 p.m., but later on stated that, at 6-05 p.m. he was still in police station and reached Alipur at 6-25/30 p.m. He has stressed that the injured Azhar did not met the Investigating Officer when he reached Alipur and even much after that. He has stated that the accused is favourite child of law and he has not to cause number of dents in the prosecution version, but single reasonable doubt is sufficient to acquit the appellant and there is series of doubts in this case, making this case fit for acquittal. Learned counsel for the appellant has argued that it is settled proposition of law that any material not put to the accused, in his statement under section 342, Cr.P.C., cannot be used against him, but the learned trial Court, without putting relevant material to the appellant/convict in his statement (ibid), convicted him. Finally he has prayed that the appellant may please be acquitted.

8. On the other hand, learned counsel for the complainant has argued that the learned trial Court has passed well-reasoned judgment and there is no illegality in the same; that the learned trial Court has rightly appreciated evidence of prosecution while awarding sentence to the appellant; that the occurrence is admitted and motive is also not denied, whereas, there was no previous enmity except the motive established by the prosecution; that involvement of appellant is not denied and the same is also established; as he remained absconded for about 2 years after the occurrence. He has further argued that ocular evidence is fully consistent with each other and corroborated with medical evidence; that the appellant is father of co-accused and he was in commanding position and whole occurrence took place on his instigation; that he was holding a commanding position and in compliance of his Lalkara, a young man was done to death. Both co-accused are the sons of present appellant and in compliance of order of their father, they killed the deceased without any justification. Learned counsel for the complainant has further submitted that mere non-recovery of empty from the spot does not make the case doubtful, when there is other overwhelming evidence present against the appellant/accused and that absconsion for a long time shows that the appellant was fully involved in this case. He finally stated that presence of eye-witnesses is natural as both are residing in the same house. He concluded that prosecution has proved the charge against the appellant beyond any reasonable shadow of doubt, whereupon, the learned trial Court has rightly convicted the appellant and impugned judgment/order does not call for any interference.

9. I have heard arguments advanced by both sides, at length and have also perused the record minutely.

10. Allegation against the appellant was that at the time of occurrence he was armed with carbine and he fired, but complainant party, luckily escaped, as they took shelter behind dense hedge; that the appellant being a father of co-accused was in commanding position and whole of the incident was taken place on his instigation as the co-accused were his sons and in compliance of his order Shahzaib did fire upon the deceased Azhar Mahmood, who fell down being injured and later on succumbed to the injuries.

11. The prosecution, in support of above charge, produced 3 eye-witnesses along with other evidence. From scanning the statements of eye-witnesses i.e. P.W.2, P.W.3 and P.W.4, it is clear that they are not consistent upon the Lalkara raised by the appellant, as two of them (P.W.3 and P.W.4) have not said that the Lalkara of appellant was having direction to put Tanveer to death, whereas, only P.W.2 said that the Lalkara of appellant was containing direction of putting Tanveer to death. This contradiction is apparent from the record, which could not be ignored lightly. It is also admitted position that no empty was recovered from the spot. The interesting aspect of this case is that the appellant was armed with carbine and according to prosecution he used the same and did fire upon the complainant party, who saved due to shelter behind the hedge, but nor a single spot was found on the leaves of hedge or any pellet was recovered from the spot, whereas, the distance from the place of firing and the person/target was 6/7 yards. On the same set of evidence, other co-accused Muhammad Tayyab, who was tried as being juvenile, was acquitted under section 302/34, P.P.C. while disbelieving the prosecution evidence, in para. No.15 of the judgment, passed in his case, which is reproduced, as under:

"Occurrence is shown to have been participated by the accused in Exh.P.B. and the subsequently produced evidence is self-contradictory. In the complaint Exh.P.B. it was mentioned that after the deceased had been fired at by Shahzaib, Aurangzaib started the firing with his .12 bore carbine and upon their hue and cry Khizer Hayyat and injured P.W.4 came at the spot who was hit by Tayyab with Danda and injured him. However, the sequence of the occurrence as mentioned by P.W.3 to P.W.5 was that firstly Shahzaib fired with his pistol and then Khizer was injured by Tayyab with a Danda and thereafter Aurangzaib fired at the P.Ws. The infliction of Danda blows by Tayyab accused in the peak of the occurrence is highly improbable rather not possible." Learned trial Court in the same paragraph at page No.11, also observed that:-- "The prosecution apparently threw the net wide enough so as to engulf all the male members of the accused family."

12. The argument of learned counsel for the appellant that a mans holding fire-arm was asking his sons, one of whom is juvenile and the other is at the crossing border of said age, to murder Tanveer and why he himself was reluctant to murder Tanveer etc., has much force. The absconsion of the accused although is very much relevant, but from the record nothing is there to show that what measures were adopted by the police to arrest him. Recovery of the weapon after two years, arises a question that why the appellant kept said weapon of offence with him for such a long time, especially when no empty was recovered from the spot. Similarly, question to send the weapon to Forensic Science Laboratory also does not arise. It is also apparent on the record, that no description whatsoever, of the vehicle was mentioned in which dead body was taken. There are contradictions in the statement of Investigating Officer (P.W.14) regarding time of his reaching at Alipur.

13. All these facts are sufficient to believe that wider net was thrown by the prosecution to implicate all male members of the accused family. I feel that the prosecution has lawfully failed to establish the case against the appellant. It was duty of the prosecution to prove the charge against him beyond any reasonable doubt. The manner in which trial Court has proceeded in the case of appellant is violative of principle of safe administration of criminal justice. Conviction can be based on the evidence which connect the accused with the commission of offence beyond any reasonable doubt and in reaching this conclusion evidence has to be of high quality and good standard, which is lacking in this case.

14. The prosecution evidence was unable to prove involvement of appellant in this case beyond the shadow of doubt. Learned trial Court has overlooked the material favouring the appellant and discarded the same in a manner uncalled for and unwarranted in law, as such conclusion made by him is not maintainable. It is not necessary that there should be many instances of doubt in a case and only one doubt about the involvement of accused is enough, if it appeals to the mind of a prudent mind.

15. It is also well-settled principle of criminal jurisprudence that any number of accused may escape unpunished, for lack of sufficient evidence or for the reason that prosecution failed to prove their guilt beyond reasonable doubt, but no innocent person should be convicted or punished for what he has not done. The doubts, therefore, repel punishment.

16. For what has been discussed above, I am of the view that prosecution has miserably failed to prove this case against the appellant beyond any shadow of doubt, therefore, the impugned judgment/order, dated 24-7-2004 passed by learned trial Court appears to be result of misreading and non-reading of evidence, which resulted in conviction of appellant incorrectly. I, therefore, set' aside the impugned judgment/order of learned trial Court and acquit the appellant from the charge levelled in this case. He be set free forthwith, if not required in any other case. N.H.Q./A-17/Isl. Appeal accepted.