1999SCMR2432 (PLP)

WAJIHUDDIN AHMED, J.

Falak Sher, appellant, alongwith his brother, Fateh Sher, was charged under section 302/34, P.P.C. before the Additional Sessions Judge, Dera Ismail Khan. The trial Court convicted the appellant, sentencing him to life imprisonment together with a fine of Rs.30,000, two years R.I. being provided for default in payment. The fine, when recovered, was to be paid as compensation under section 544-A, Cr.P.C., to the extent of half of it. Benefit of section 382-B, Cr.P.C., was also allowed. However, the trial Court, simultaneously, per judgment, dated 23-1-1993 acquitted co-accused Fateh Sher. Such findings were assailed by the appellant before the Peshawar High Court as also by the Zar Moeen, father of deceased Imdad Hussain, who preferred a revision petition in that behalf, praying for imposition of penalty of death on the appellant and seeking the recall of the order of acquittal of appellant's brother and co-accused Fateh Sher. The prosecution version is succinctly recorded by the High Court in its judgment, dated 8-11-1994 whereby, on the one hand, the appeal of the convict was dismissed, but, on the other, revision of the victim's father was partly allowed, inasmuch as, the life imprisonment was converted into death but acquittal of co-accused Fateh Sher was left undisturbed. The prosecution version, as recorded by the High Court is this:-- "The prosecution's story is that on 18-5-1991 Sher Zaman P.W.7 approached Police Station Paharpur and informed Shahabuddin Khan S.H.O. of the Police Station that about 'dopher-vela' he was attracted from his house by a report of fireshot and on his coming out of his house he found a man lying murdered 'on the ground, while two other persons were on the run from the scene of occurrence. He further stated that one of the aforesaid two persons was armed with a shotgun while the other was empty handed. Sher Zaman P.W.7 chased the running persons and succeeded in catching and overpowering the man who was -armed with. 12 bore shotgun. He also informed the S.H.O. that the aforesaid armed person was confined in a 'kotha' in his hamlet and was being guarded by his relations. The said Police Officer namely Shahabuddin Khan P.W.11 alongwith the police party proceeded to the spot and on their arrival at the spot they found the dead body of the person mentioned above. For the identification of the dead body certain persons of the WAPDA Staff were called who identified the dead person as Imdad Hussain son of Zar Moeen Khan resident of Palosaki District Karak, who was posted as Assistant Lineman Paharpur Sub-Division WAPDA. The occurrence was reported through 'murasila' Exh.P.A/1 written by Shahabuddin Khan, P.W.11 and sent to the police station for registration of the case which was incorporated in the F. I. R. Exh.P.A." When, however, complainant Sher Zaman (P.W.7), was examined in Court he, inter alia, stated as under:

"The deceased was not known to me, nor have we any enmity with the accused. On the day of occurrence, I was present in my house. It was noon time when in the meantime I heard a knock at the door of my house for which my father went out. My father a little while after again came back and took the bucket of drinking water outside the house. No sooner my father had taken the water outside the house, I heard the report of a fireshot. I was attracted towards the direction of the fire. I found an unknown person lying dead there. I also saw, two persons at some distance fleeing away from the spot. Out of the two persons, one was armed with D.B. shotgun. He was overpowered by me while the other person succeeded in making good his escape. While I was bringing that man towards our house, in the meanwhile, my father namely Hakim Khan and my uncle Sardar also reached and I told them to detain him in the Baithak as I was going to report the matter in the police station. I then proceeded to the police station where .I made the report. Again said that I informed the police about the incident." In cross-examination the witness accepted it as correct that women-folk were present inside his house during the fateful hour. He denied that the deceased had entered such house or that he was fired at by the complainant himself while he was scaling the wall for jumping outside. The witness also acknowledged that he had chased the accused while he was empty handed and while the latter was armed, as alleged by him. Hakim Khan, father of the complainant, (P.W.8), stated that it was 1200 hours when, being asleep, he was awakened by his wife, reporting that someone had knocked at the door whereupon, going out, the witness saw two unknown persons standing. They enquired from him whether somebody had entered his house to which he replied in the negative. These persons asked him to provide them drinking water. He then went inside but, coming back, heard report of a fireshot, emanating from the back of his house. At this stage, the said two persons started running away from the spot. The witness then stated that his son, Sher Zaman, had already left in pursuit of the two runaways. In the meantime, Sardil, brother of the witness, was also attracted to the spot. Both saw Sher Zaman catching hold of one of the unknown persons who was handed over to them. Sher Zaman then proceeded to the police station. In the examination-in-chief itself Hakim Khan said that he did not know the so-called unknown (apprehended) person even on the day of his examination. In cross-examination, the witness again said that when he brought the drinking water the two strangers were present at the door but, on hearing the report of the fireshot, they started running away. The witness denied the suggestion that the deceased had entered their house. Sardil Khan, uncle of the first informant, (P.W.9), maintained that ,while he was present in the house he heard noise as well as the report of a fireshot. Coming out of the house he found that his nephew, Sher Zaman, had overpowered one accused who was handed over to him and his brother, Hakim Khan. Sher Zaman, his nephew, then proceeded to the police station. This witness also denied in cross-examination that any person had entered their house or was shot at by Sher Zaman. Hussain Bakhsh, H.C., (P.W.1), Abdul Aziz, F.C., (P.W.3), Hayatullah, A.S.I., (P.W.10), and Shahabuddin Khan, S.H.O., (P.W.11), were the official witnesses, who, inter alia, conducted investigation and produced the relevant documentary and other material. Rafique Ahmad, Line Superintendent, WAPDA, (P.W.2), and Haji Zarmoin Khan, (P.W.5), father of the deceased, had identified the latter. Muhammad Anwar Khan Mahsood, M.I.C., D.I. Khan, (P.W.6), recorded the confessional statement (Exh. P.W.6/1). He also produced the relevant questionnaire (Exh.P.W.6/2) and his duly signed certificate (Exh.P.W.6/3). The confessional statement of the accused runs, thus:

In his statement under section 342, Cr.P.C., however, the accused appellant came up with the under noted version:-- "Q. What is your statement and why are you charged? A. I am innocent and have falsely been charged. At the time of the alleged occurrence, I was passing on a path near the house of complainant party and P.W. when in the meantime, I heard a report of fire-shot. To inquire about the fire-shot, I proceeded towards the spot and on reaching close to the spot, I found Sher Zaman P.W. duly armed with a D.B. shot gun. I also noticed one dead body lying close to his house. I wanted to inquire from him as to why he had killed the deceased to which he replied that the deceased had trespassed into their house after their womenfolk. I challenged him that I would report the matter against him upon which he abruptly caught hold of me and forcibly took me to their house where I was confined in at room which was chained from dutside. Some time after wards, police arrived there and arrested me. The gun, the empty and the bandolier were produced by Sher Zaman to the I.O. after having procured an empty by firing a cartg; from the same gun. There was no other person who could narrate the real facts. The I.O. did not record the report of Sher Zaman. He conducted all the investigation at the spot and then took me to the police station, I repeatedly protested that I was innocent and instead the murder was committed by Sher Zaman himself but the 1.0. did not pay any heed to my agitation and he acted under the influence of the P.Ws. because both I.O. and the P.Ws. were Pashtoon. Thus, the present case has been concocted against me, otherwise, I had no motive to kill the deceased nor is there an iota of evidence to prove enmity between me and the deceased. No evidence whatsoever worth named was collected by the I.O. to link me with the commission of murder except the ipsi dixit of Sher Zaman who has played the major role in the episode." In the circumstances aforementioned, the High Court has recorded the following observations and findings:-- "For the exhaustive narrative in the aforegoing paragraphs we have not been persuaded to reverse the order of acquittal passed in favour of Fateh Sher accused. Similarly, the prosecution has not established any motive on the part of the appellant and, therefore, we cannot hold that it was a murder in cold blood. The events that immediately preceded the occurrence are also shrouded in obscurity. Therefore, we do not find any merit in the prayer of the complainant for which he replied that he was not tortured and, interestingly, this question has been scribed by the Magistrate in his own hand and the thumb-impression of the appellant has been affixed immediately after his answer to his question. (13) The perusal of record clearly indicates that the appellant was apprehended on the spot with gun has been proved to be his property because the prosecution has succeeded in procuring its licence P.8 from the brother of the appellant which denotes indicates that the said shotgun is licensed in the name of the appellant. The medical evidence has also supported the prosecution version because it vividly indicates that the injuries on the person of the deceased were caused by a shotgun. We also find that the confession has been made voluntarily and has been recorded in accordance with the requirements of law, imposing the penalty of death on Falak Sher appellant. " Leave was granted in this Court, on 22-5-1995, to consider whether the conviction, as above, was in accordance with the principles governing the safe administration of criminal justice. The first and foremost aspect of the case is that the accused, who was arrested on 18-5-1991, made the Confessional statement the very next day namely, 19-5-1991, suggesting a likelihood that extraneous factors may not have entered in its making. However, such statement appears to be lacking in necessary details as to motive, which alone could have impelled the accused to have undertaken the pursuit of the victim. Correspondingly, there are obvious inconsistencies in the prosecution version, as reflected in the respective statements of P.Ws.1 to 3, the inconsistencies being of a minor nature, not qualifying for the destruction of the entire prosecution case. Inconsistencies of such a minor dimension throw up doubts about the prosecution version but do not qualify for acquittal of the accused. They present merely a mitigating circumstance capable of affecting no more than the quantum of sentence. The learned Additional Advocate-General, on his part, explained the same, saying that the two accused were no strangers to the P.Ws. being residents of the same locality and that untruths were woven in the prosecution version in order to indirectly shield the accused of the murder of a total stranger for whom the witnesses had no sympathy. The essentials in the prosecution version, however, stand corroborated by the recovery of the licensed gun of the accused, the matching' of the recovered empties therewith, arrest of the accused while locked in the complainant's house, the confirmatory post-mortem report and the retracted but otherwise valid confession. Yet another significant aspect of the matter consists of the fact that the police had sent the trousers of the deceased for obtaining a semen test which, however, turned out to be negative. This would indicate a degree of consistency in the case of the accused/appellant namely, that the deceased was done to death for reasons, which had a nexus with the grievance of the complainant party itself. Negative aspects, however, are that the prosecution witnesses had no motive to falsely implicate the accused in a case which easily could have gone down as one involving self-defence, that is to say, if the accused was at all right in regard to his counter version. Weakness of this plea is further demonstrated when the accused did not care even to examine himself on oath on the point. Besides, co-accused Falek Sher in his 342, Cr.P.C., did not even hint at any such implication, content in saying that he was falsely implicated to increase the number of accused. Place this in a background where there did not exist even a previous animosity between the parties. The result, therefore, would be dilution of the prosecution version but not its complete negation. In support of the prosecution case would also count the conduct of the father of the victim, who not only examined himself in support of the prosecution, even though he had merely identified the deceased but went to the extent of preferring a revision, seeking death penalty to the appellant and reversal of the acquittal, of the appellant's brother. In the overall circumstances of the case, where motive had become suspect and where the prosecution version suffers from inconsistencies, other than of a fatal character, it appears proper not to resort to the death penalty, touching the guilt of the accused. For such reasons, this appeal is partly allowed converting the capital punishment, awarded by the High Court, into life imprisonment coupled with fine and identical provisions, as to distribution of compensation under section 544-A, Cr.P.C., returned by the trial Court together with the benefit of section 382-B, of the same Code. N.H.Q./F-58/S Order accordingly.