2021 PLP 100 (YLRN)

MALIK HAQ NAWAZ, C.J.

This criminal appeal filed under sections 417(1) and 2-A, Cr.P.C. has assailed the impugned judgment dated 19.04.2019 passed by the learned Sessions Judge District Ghizer in Sessions Case No.39/2015, whereby the learned trial Judge has acquitted all the respondents/ accused from the case FIR No.19/2015 registered under sections 302, 324, 460, 109/34, P.P.C. at Police Station Gupis District Ghizer, giving them benefit of doubt.

2. The sketch of case against the respondents/accused has been drawn in detail by the learned trial Judge in Para No.1 of the impugned judgment, which is reproduced as under: "The facts of instant criminal case as narrated by the prosecution are that on 01.09.2015 at about 2115 hours, the complainant Mir Ghazi son of Asghar Ali resident of Gupis Proper presented a written report before Station House Officer Gupis. In said written report he alleged that his son Ehsan Ali had married Mst. Samreen daughter of Muhammad Sharif by mutual consent and love. They had contracted the marriage in the Court. Today the accused persons namely Muhammad Sharif Khan, Mir Afzal sons of Sardar Khan, Muhammad Aslam, Muhammad Riaz and Asif Khan sons of Mir Afzal, Nizam son of Azam Khan resident of Gupis Proper and Sadam son of Amir Khan resident of Chartoi Jandrote have entered his house at 8:30 P.M. duly armed and have opened fire at his daughter in law Samreen and son Ehsan Ali. As a result of firing opened by the said accused Mst. Samreen has died on the spot. While his son Ehsan Ali has been critically injured. His wife Mst. Alizabeth, sister Halima and daughter Saima had begged the said assailants to have mercy on deceased Samreen and injured Ehsan Ali and spare their lives. But the said assailants did not heed to them and pushed them aside. The accused namely Aslam opened fire at the head of deceased Samreen while accused Muhammad Sharif opened fire at Ehsan Ali. Thereafter all the said accused opened fire simultaneously. The accused tied hands of wife, sister and daughter of the complainant and bolted the door of the kitchen from outside and fled from the scene of occurrence. Hearing the sounds of gun shots and hue and cry raised by said three women, a neighbor namely Sher Baz son of Sher Tullah came to the house of complainant and opened the door of kitchen. The said accused as well as accused Muhammad Zakir Khan son of Amir Khan and Ibrahim son of Ahmed Jan resident of Chartoi were directing threats to son of complainant Ehsan Ali since his marriage. The complainant believed that said two persons have also abetted the said six assailants in commission of the offence. The injured namely Ehsan Ali has been shifted to Civil Hospital Gupis while the dead body of Mst. Samreen is lying at the place of occurrence. The complainant prayed for arresting of the culprits and dealing with them in accordance with law. On the basis of said written application FIR No.19/2015 was lodged at Police Station Gupis. Sections 302, 324, 460, 342, 109/34, P.P.C. have been referred in Column No.3 of the FIR."

3. The SHO/IO Mr. Mehboob Hussain, on written report of complainant chalked FIR No. 19/2015 (Exh.PW-19/A) and commenced formal investigation of the case. He visited to the scene of occurrence and prepared site plan, took into possession empty shells of 9 MM and 30 bore pistols from the place of occurrence. He also preserved pieces of blood stained plastic chatai and ghaddi from the site of occurrence. He arrested ten accused on the very next day of occurrence, out of which three accused namely Nizam, Akram and Imran were released by the SHO/IO during investigation under section 169, Cr.P.C. He recovered four pistols from the possession of accused Muhammad Sharif, Muhammad Aslam, Muhammad Riaz and Asif Khan and prepared recovery memos. The IO/SHO prepared inquest reports of both the deceased. After preserving every piece of evidence and completion of all the codal formalities of investigation, the Investigating Officer submitted challan of the case under section 173, Cr.P.C. The IO/SHO also submitted challan of four cases registered under section 13 Arms Ordinance, 1965 against four accused Muhammad Sharif, Muhammad Aslam, Muhammad Riaz and Asif Khan for keeping unauthorized pistols, vide Exh.PW-19/O to Exh.PW-19/R.

4. Accused Sadam Hussain remained absconder after the incident, who was arrested by SHO Police Station Gupis/Yasin Mr. Akbar Hussain on 22.11.2015 and I.O. recovered one 9 MM pistol from a room of his house. On his failure to produce valid licence of the said pistol, the SHO/IO registered FIR No.34/2015 (Ex.PW-17/C) under section 13 Arms Ordinance, 1965 and after completion of investigation, submitted challan of the case Exh.PW-17/E against the said accused and committed him to judicial lock-up.

5. The pieces of evidence sent by the police to Forensic Science Laboratory Hayatabad Peshawar are blood stained piece of plastic chatai, blood stained piece of gadi, six empty shells of 30 bore pistol, two empty shells of 9 MM pistol, 30 bore pistol bearing No.363 MM, 30 bore pistol bearing No. EJ 2211955, 30 bore pistol bearing No. H178, 30 bore pistol bearing No.NIL, 9 MM pistol bearing No. M-20 A-1 CAL, one blood stained blue/black white lined shirt, one blood stained blue coloured pant, one blood stained black coloured shalwar and one blood stained black printed shirt.

6. The case of prosecution emerged on the scenario of judicial platform in the Court of learned Sessions Judge District Ghizer for trial. On 13.11.2015 charges were framed against all the accused except accused Sadam Hussain, who was charged on 07.03.2016 for murder of Ehsan Ali and Mst. Samreen. Separate charge sheets have also been framed against the accused Asif Khan, Sadam Hussain, Muhammad Aslam, Muhammad Riaz and Muhammad Sharif under section 13 Arms Ordinance, 1965. All the accused did not accept the charges levelled against each of them and demanded proper trial.

7. When the accused refused to acknowledge the charges, the responsibility of the prosecution to bring every piece of evidence on record in order to prove its case beyond any shadow of doubt started. In this regard, prosecution examined nineteen witnesses as oral evidence and FSL reports and postmortem reports as documentary evidence in support of its version and the evidence was closed by District Public Prosecutor Ghizer on behalf of prosecution. On 06.10.2018, accused were examined separately under section 342, Cr.P.C. and confronted them with all incriminating evidence brought against them. They refuted the same and professed innocence. The accused neither opted to record their statements on oath under section 340(2), Cr.P.C. in disproof of allegations, nor they produced any evidence in their defence.

8. Brief resume of prosecution's witnesses is as under: PW-1 Mir Ghazi is FIR lodger/complainant; PW-2 Murad Khan is marginal witness of Exh.PW-2/A to Exh.PW-2/P; PW-3 Javed Iqbal is also marginal witness of Exh.PW-2/A to Exh.PW-2/P; PW-4 Ibrahim Ali Shah is recovery witness of Exh.PW-4/A and Exh.PW-4/B, vide which police have recovered 30 bore pistols from the possession of accused Muhammad Aslam and Muhammad Riaz; PW-5 Mst. Alizabeth is eye-witness of the occurrence; PW-6 Mst. Saima is also eye-witness of the occurrence; PW-7 Maqsad Jan is recovery witness of Exh.PW-7/A and Exh.PW-7/B, vide which police took into custody 30 bore pistols from the possession of accused Muhammad Sharif and Asif; PW-8 Muhammad Nadir Khan is also marginal witness of Exh.PW-7/A and Exh.PW-7/B; PW-9 Sher Baz is marginal witness of the occurrence; PW-10 Tariq Hussain is marginal witness of the occurrence; PW-11 Ali Madad Khan is marginal witness of the occurrence; PW-12 Dr. Sonia Fatima has conducted postmortem of deceased Mst. Samreen; PW-13 Dr. Walayat Khan has carried out autopsy of deceased Ehsan Ali; PW-14 Zohaib Ahmed is recovery witness of Exh.PW-14/A, vide which police took into custody one 9 MM pistol from the possession of accused Sadam Hussain; PW-I5 Nasir ud Din is also marginal witness of Exh.PW14/A; PW-16 Muhammad Pana FC is marginal witness of Exh.PW16/A, vide which I.O. has taken into possession one spent bullet/sikka delivered by the doctor Walayat Khan at Civil Hospital Gupis; PW-17 Akbar Hussain DSP/SDPO Gupis/Yasin is Investigating Officer of case FIR No.34/2015 registered under section 13 AO against accused Sadam Hussain; PW-18 Islam Khan SIP/SHO PS Gupis has submitted complete challan along with FSL report; PW-19 Mehboob Hussain IP/SHO PS Gupis is Investigating Officer of main case

9. The learned trial Judge after completion of full-fledged trial and hearing both the parties, acquitted all the accused from the charges extending them benefit of doubt, vide impugned judgment dated 19.04.2019. The State and complainant showing their dissatisfaction over the impugned judgment, filed the instant criminal appeal with prayer to award capital punishment to the accused.

10. Learned Dy. Advocate General and private counsel for the complainant argued that the trial Court has committed illegality while acquitting the accused/ respondents, without appreciating the evidence on record. The learned counsel for the State and complainant submitted that there is overwhelming evidence on record against the respondents/accused for conviction of capital punishment, whereas the learned trial Court has ignored the material evidence. They contended that the eye-witnesses namely Mst. Elizabeth (PW-5) and Mst. Saima (PW-6) have deposed before the Court about the manner of occurrence. Both the PWs remained constant and unequivocal throughout the lengthy cross-examination. The presence of the PWs at the scene of occurrence is natural and the identification of the accused by PWs is fully justified in the cross-examination as the accused and PWs are residents of same locality. Learned trial Court has discarded the ocular account regarding the identification of accused without applying any settled principle of criminal jurisprudence, hence the findings of learned trial Court are unjustifiable and the impugned judgment is liable to be set aside.

11. The learned Dy. Advocate General and counsel for the complainant submitted that the learned trial Court has also misinterpreted and has drawn wrong inference about the source of light at the scene of occurrence. PW-5 and PW-6 have categorically stated in their statement that they were watching TV when the accused entered the home and opened fire on the deceased. In the presence of such statement it is matter of common prudence that TV can only be watched on the availability of electricity, hence the logic of trial Court is itself illogic. Judgment being based on such flimsy ground is liable to be set aside. They further argued that all the corroborative evidence, post mortem reports, FSL reports and the recovery of alleged weapons of offence from the accused supports the case of prosecution, whereas the impugned judgment is result of misconception, misunderstanding and misinterpretation of law, hence the impugned judgment is not in accordance with law and available record on file, thus the accused are entitled to award capital punishment by setting aside the impugned judgment. They relied on 2011 SCMR 725, 2012 SCMR 215, 2016 PCr.LJ 513 [Peshawar], 2010 SCMR 1791, 2003 SCMR 522, 2010 SCMR 182, 1997 SCMR 174 and PLD 2008 273(sic).

12. On the other hand, the learned counsel for the accused/respondents supported the impugned judgment by arguing that the there are glaring contradictions between the statements of eye-witnesses and contents of FIR. In the FIR it is alleged that accused Aslam has opened fire on Mst. Samreen and accused Muhammad Sharif has opened fire on deceased Ehsan Ali, whereas the eye-witnesses in their examination in chief has dishonestly implicated five accused/ respondents instead of the above two accused. This version of statement shows that the PWs have improved their statement by concealing the actual facts of the case. The learned counsel for the accused/respondents submitted that FIR lodger is not eye-witness and he has reported the matter to police by getting information from his family. The learned counsel for the accused/respondents submitted that the FIR is lodged on written application of complainant, but strangely the written application of complainant is missing mysteriously from prosecution as well as judicial file. The index of judicial case file is also silent in this regard, which strengthens the notion that in the application of complainant unknown persons were nominated, which is intentionally removed from record to implicate the present accused/respondents in the case.

13. The learned counsel for the accused/respondents further submitted that it was admitted by the PWs including the eye-witnesses that their statements were recorded by police under section 161, Cr.P.C. in hand writing with their signatures, but the statements available on judicial file and prosecution file are composed/typed by computer having no signatures of the PWs, which creates serious doubt that the actual record has been disappeared with a well built plan to involve the present accused/respondents in the case. The learned counsel for the accused/respondents submitted that the PWs have made improvements in their statements which have created even more serious doubts in the case of prosecution. The learned counsel argued that the occurrence has taken place in the dark of night, whereas the entire record of prosecution is silent regarding the source of light in which the accused/respondents have been identified by eye-witnesses. PWs-9 to 11 stated that they have seen the accused/respondents fleeing from the scene of occurrence in torch light, but the said torches have not been made part of record.

14. The learned counsel for the accused/respondents contended that the most important fact is identification of accused/respondents. In this regard, the IO/SHO has not conducted identification parade of the accused/respondents. Both the parties are neither relatives, nor they have visited their houses ever, then how it is possible that a sudden interaction in a horrible scene with the accused, the eye-witness may identify the accused/ respondents who are not men but womenfolk. In cross-examination, PW-6 showed his inability to tell the names of female family members of the accused party and the eye-witnesses have frankly admitted that they have no visiting terms with the accused party. Even respondents 6 to 8 belong to Chartoi which is situated at a distance of 6/7km from Gupis. In such a situation, identification of the accused/respondents is dubious and the complainant has dishonestly implicated them after planed deliberation.

15. The learned counsel for the accused/respondents further argued that PW-5 Mst. Alizabeth who is the focal eye-witness in the matter, has stated that the accused have opened 50 fires on my son Ehsan Ali and 25 fires on Mst. Samreen having a suckling child in her lap. The police have taken into possession only 6 empty shells of 30 bore and 2 empty shells of 9 MM, whereas the post mortem report of deceased indicates that deceased Ehsan Ali has received only six injuries, and Mst. Samreen has received only 4 injuries on their bodies. The statement of this eye-witness is unrealistic as the deceased lady was fired with 25 fire shots and her baby who was in her lap, remained safe. All the PWs do not support this version of PW-5 and some said that they heard only 4/5 fire shots during the occurrence.

16. The learned counsel for the accused/respondents submitted that PW-11 has stated in his cross-examination that the injured Ehsan Ali was shifted to Hospital in Highroof of NATCO, whereas PW-10 stated in his cross-examination that the injured was shifted in a Carry Daba, even these two PWs showed their inability to recognize the driver of vehicle. When these PWs do not recognize the driver of the vehicle, then it can safely be said that how they identified the accused/respondents in the dark of night. Their statements are in contradiction with each other. The learned counsel for the accused/respondents submitted that the I.O. has stated in cross-examination that he visited the hospital where he remained one hour and then went to the house of complainant along with dead bodies and then returned to police station and chalked FIR against the accused and this fact is contrary to the contents of FIR wherein the matter is shown as reported promptly after the occurrence.

17. The learned counsel for the accused/respondents further submitted that accused Aslam is allegedly charged with opening of fire on deceased Mst. Samreen, whereas PW-8 stated in his cross-examination that the said accused/ respondent was with him in workshop at the time of occurrence. The learned counsel contended that the recoveries of crime weapons are also highly doubtful. The recovery witnesses stated in their cross-examination that they remained outside the house of accused and they have singed the recovery memos in police station, which shows that the recoveries are fake. The recovery PWs did not identify that which weapon is recovered from which accused in the Court, even the 9MM pistol recovered from accused Sadam Hussain was not in functioning condition and this fact has been admitted by the IO/SHO and recovery witnesses. Lastly the learned counsel for the accused/respondents contended that as per PW-12 and PW-13, the postmortem of both deceased persons have been conducted on 02.09.2015, but the postmortem report is issued on 07.09.2015, which shows mala fide on the part of prosecution as well as the PWs. It is well settled principle that the benefit of even a slightest doubt is given to the accused, whereas in the instant case, the entire record of prosecution is plethora of serious doubts. All the proceedings and statements of PWs are contrary to the actual facts with incorrigible contradictions and the case has been prepared with planed dishonesty to implicate all the relatives of the accused party. The learned counsel relied on 2017 SCMR 244, 2018 SCMR 772, 2008 PCr.LJ 869 and 2019 PCr.LJ 186.

18. We have given our judicious mind to the contentions of the learned counsel for the parties and perused the record of the case with due care.

19. It is an admitted fact in criminal jurisprudence that the whole structure of a criminal case develops on the first information report, meaning thereby that FIR is founding stone of a criminal case and prosecution has to prove all the allegations embodied in the FIR through reliable evidence without any kind of unnecessary improvement during the trial either in evidence or in documents. If any improvement develops at later stage and prosecution strives to develop heavy structure on the founding stone of FIR which is not sustainable, then the structure to the extent of contents of FIR will be given legal cover. Such false improvement will not lead the case of prosecution towards conviction of any innocent, which may be presumed a wider net to catch more fish in a greedy manner, but at the same time FIR is not an encyclopedia and if because of shock and terror, any discrepancy if found, mere an omission may be ignored, while appreciating the evidence, if the circumstances justify such an omission.

20. Perusal of instant case record shows that the FIR lodger who is father of Ehsan Ali and father-in-law of Mst. Samreen (deceased couple) has nominated six accused namely Muhammad Sharif Khan son of Sardar Khan, Muhammad Aslam, Muhammad Riaz, Asif Khan sons of Mir Afzal, Nizam son of Azam Khan residents of Gupis and Sadam son of Amir Khan resident of Chartoi Jandrote, who entered the house of complainant at 8:30pm on 01.09.2015 and opened indiscriminate firing on his son and daughter in law, whereupon the daughter in law died on the spot whereas his son was seriously injured. After commission of alleged offence, the accused named-above tied the hands of three ladies namely Mst. Alizabeth, Mst. Halima and Mst. Saima who were present in the kitchen along with the victims where the crime scene occurred. The accused, thereafter, bolted the kitchen door from outside and fled away. In addition to the above-named six accused, the complainant also incriminated Mir Afzal son of Sardar Khan, Akram, Imran sons of Shah Rais residents of Gupis, Zakir son of Amir Khan and Ibrahim son of Ahmed Jan residents of Chartoi for abetment to the main culprits in commission of offence. Thus six accused were nominated for murder of deceased couple and five accused were nominated in abetment of principal accused. Out of above all accused, the Investigating Officer of the case released three accused namely Nizam, Akram and Imran under section 169, Cr.P.C. treating them innocent.

21. The episode in the contents of FIR which is vital and realistic, is that when the principal accused entered into the kitchen, the wife of complainant Mst. Alizabeth, sister Mst. Halima and daughter Mst. Saima begged for mercy, but pushing them apart, accused Muhammad Aslam and Asif Khan opened fire on the head of Mst. Samreen, whereas accused Muhammad Sharif, Sadam and Muhammad Riaz opened fire on Ehsan Ali. This episode gains support from ocular account of eye-witness and other circumstantial pieces of evidence in the gradual development of prosecution case. When the contents of FIR are read between the lines, only accused Muhammad Aslam, Asif Khan, Muhammad Sharif, Sadam and Muhammad Riaz have been nominated by the complainant with specific role of firing, which caused death of an innocent couple having a baby of one month.

22. PW-5 Mst. Alizabeth and PW-6 Mst. Saima narrated the ocular account of the incident being eye-witnesses. At the time of occurrence, they were watching TV with the two victims when the accused entered the kitchen. Their presence at the place of occurrence is natural as they are members of a single family and living together in one house. PW-5 stated in her examination in chief that accused Muhammad Aslam and Asif Khan opened fire on my daughter in law Mst. Samreen and accused Muhammad Sharif, Sadam and Muhammad Riaz opened fire on my son Ehsan Ali. PW-6 also reiterated the same words in her examination in chief by awarding specific role of firing to the above named accused. Both the PWs were subjected to lengthy cross-examination by the learned defence counsel, but their statements remained constant throughout. The learned defence counsel failed to extract any adverse statement from the PWs, which could provide benefit of doubt to the accused. Thus the statements of both the eye-witness fairly implicate accused Muhammad Aslam, Asif Khan, Muhammad Sharif, Sadam and Muhammad Riaz in commission of the offence of murder.

23. Crime weapons as mentioned in Para-5 herein above, have been recovered from the possession of accused Muhammad Sharif, Sadam, Muhammad Riaz, Muhammad Aslam and Asif Khan in presence of impartial witnesses. These pistols along with empty shells recovered from the place of occurrence have been sent to expert's opinion, which reports were received in positive. Thus empties taken into possession from the place of occurrence were fired by the pistols taken into custody from the possession of five accused. The Forensic Science Laboratory reports support the version of FIR and ocular account of eye-witnesses. Similarly, the reports of blood stained piece of plastic chatai, blood-stained piece of gaddi, blood stained blue/black while lined shirt, blood-stained blue coloured pant, blood stained black coloured shalwar and blood stained black printed shirt, taken into possession by the I.O. from the place of occurrence, have also been received in positive which shows that the murder has been committed by the above named five accused. These pieces of evidence are also in line with the version of prosecution and leading towards conviction of the accused.

24. Another piece of evidence brought by the prosecution on file is postmortem report. PW-12 Dr. Sonia Fatima LMO Civil Hospital Gupis conducted postmortem of deceased Samreen. During examination of dead body, she found 4 entrance and 4 exit wounds of fire arm on the body of Samreen and opined in his report that the deceased was died instantaneously due to blood (sic) injuries and excessive bleeding. PW-13 Dr. Walayat Khan, APMO Civil Hospital Gupis has conducted autopsy of deceased Ehsan Ali. He found 6 entrance and 6 exit wounds on dead body of Ehsan Ali with the opinion that the deceased was died as a result of bullet injuries and excessive bleeding from injured sides. Both the postmortem reports suggest that the death of both deceased persons was caused due to fire arm injuries, which collaborates the statements of eye-witnesses.

25. The role attributed to accused Muhammad Aslam, Asif Khan, Muhammad Sharif, Sadam and Muhammad Riaz in the FIR has been proved by the prosecution through reliable and cogent evidence. Although PW-8 Muhammad Nadir Khan stated in his cross-examination as under: "It is correct that at the time of murder of two persons in this case, my disciple/trainee accused Aslam was present with me in my workshop at Gupis" Accused Aslam in this regard, did not exercise the option of alibi by producing independent witnesses in his favour, nor he opted to record his statement on oath under section 340(2), Cr.P.C. In such a situation, the above quoted statement of PW-8 is presumed to be an afterthought. Although minor discrepancies and contradictions may appear among the statements of witnesses, but benefit of nominal contradiction or discrepancy cannot be afforded to the accused in a case where lives of two innocents have been taken in a brutal manner. The entire evidence and other incriminating material available on record, suggests that accused Muhammad Aslam and Asif Khan have committed murder of deceased Mst. Samreen, whereas accused Muhammad Sharif, Sadam and Muhammad Riaz have committed murder of Ehsan Ali and the learned trial Judge has failed to appreciate the valuable evidence against the above named five accused, whereas the case of prosecution to the extent of remaining accused is doubtful and suffers dishonest improvement like a wider net.

26. In view of above detailed discussion, we modify the impugned judgment dated 19.04.2019 passed by the learned Sessions Judge District Ghizer in Sessions Case No.39/2015 and convict accused/respondents Muhammad Aslam, Asif Khan, Muhammad Sharif, Sadam and Muhammad Raiz under section 302(b), P.P.C. for committing Qatl-i-Amd of deceased Mst. Samreen and Ehsan Ali respectively and sentenced them to life imprisonment (R.I.) on two counts with fine of Rs. 300,000/- (three hundred thousand only) each in terms of section 544-A Cr.P.C, which on realization to be paid to the L.Rs of the both the deceased in equal share and in case of default whereof, they will undergone S.I. for one year. The amount of fine shall be recovered from the above-named respondents/accused as an arrear of land revenue. The above-named respondents/accused are further convicted under section 13 Arms Ordinance, 1965 for keeping unlicenced 30 bore/9MM pistols and sentenced them to undergo two years simple imprisonment. However, benefit of section 382-B, Cr.P.C. is extended to the convicts. The sentences shall run concurrently. They are directed to be taken into custody to serve out the punishment.

27. Appeal is accepted to the extent of above-named five accused/respondents, whereas appeal to the extent of remaining accused/respondents is dismissed.

28. Criminal Appeal No. 9 of 2019 is disposed-off accordingly. File. JK/11/GB Order accordingly.