P L D 1995 Peshawar 155 (PLP)

(6) Fire‑arm entry wound 1/4" x 1/4" on the lateral side of the right arm 3" above the right elbow joint. (7) Fire‑arm exit wound 1/2" x 1/2" on the medial side of the right arm 3" above the right elbow‑joint. (8) Fire‑arm entry wound 1/2" x 1/2" on the right side of the abdomen 8" below the right axila exactly on the mid exillary line. Internal examination: Chest cavity full of blood. Pleaura, right and left lungs, pericardium and heart, abdominal cavity full of blood, peritoneum small intestines, large intestines, right kidney all were injured. Shakil Ahmad (P.W.2) identified the dead body of the deceased. Shah Jehan, FC (P.W.5) is marginal witness to recovery memo. Exh.PC. Saadat Melia S.I. (P.W.7) submitted challan in the Court against the accused. Habib Khan (P.W.8) was entrusted with warrants of arrest as Exh.PW2/1, Exh.PW.l/1 and Exh.PW.l/2 issued against the accused but the accused were not traceable, therefore, he returned the same unserved with his report as Exh.PW.8/1 and Exh.PW.8/2. He was also entrusted with proclamation Notice Exh.S.W.l/4 issued against the accused which was returned after due compliance with report as Exh.PW.8/3. In the meanwhile accused, Hidayatullah, was arrested when his bail‑before‑arrest was not confirmed on 19‑7‑1989 but allowed by this Court on 15‑8‑1989. Accused, Saifur Rahman, was arrested by Safdar Ali, LH.C. (P.W.1) under section 13, A.O. but was formally arrested in this case on 4‑11‑1990. Rahatullah Khan, S.I. (P.W.11) submitted supplementary challan against him. Ghulam Akbar (P.W.9) and Jamal (P.W.10) furnished ocular account of the occurrence in the Court of Mr. Muhammad Alamzeb, ASJ‑I, Peshawar. They were charged (to which they pleaded not guilty), tried and ultimately acquitted vide judgment dated 21‑12‑1990.

4. The learned trial Court disbelieved the evidence of Ghulam Akbar (P.W.9) and Jamal (P.W.10) and held that both being related inter se and inimical towards, the accused were not reliable and, therefore, not truthful witnesses.

5. After the arrest of accused‑appellant, _Fazal Dayan, on 25‑6‑1992 when his pre‑arrest bail was not confirmed, supplementary challan was submitted by Shah Ali Kiyani (P.W.8). The case was entrusted to Mr. Shah Jehan Khan, ASJ‑II, Peshawar, for trial. The learned trial Court convicted appellant, Fazal Dayan, on 6‑1‑1994 and sentenced him to life imprisonment. The learned trial Judge was of the view that ocular testimony furnished by the above two eye witnesses coupled with the motive, corroborated by medical evidence and abscondence of appellant Fazal Dayan proved the case beyond reasonable doubt.

6. We have heard Mr. Khawaja Muhammad Khan, learned counsel for the appellant‑convict, Fazal Dayan (in Criminal Appeal No.10/94) and Hidayatullah and Saifur Rahman, respondents (in Criminal Appeal No.50/92) and Mr. Abdur Rauf Gandapur, Advocate, for State assisted by Mr. Muhammad Tehmash Khan, Advocate, for the complainant and gone through the entire record with their assistance. It is contended by Mr.Khawaja Muhammad Khan, Advocate, that the occurrence has not taken place in the mode and manner and also at the time as alleged by the prosecution. He insisted that it is an un-witnessed crime and urged that the P.Ws. were not present at the spot at the time of occurrence and that the accused are charged due to their enmity towards the complainant party. He referred to the material irregularities and contradictions in the statements of the eye‑witnesses with particular reference to medical evidence not supporting the prosecution story. As against this the learned counsel for the State assisted by the learned counsel for the complainant supporting the judgment of Mr.Shah Jehan Khan, ASJ‑II, Peshawar, submitted that appellant, Fazal Dayan, has rightly been convicted and sentenced on the basis of promptly lodged F.I.R. which stood proved by the motive, ocular testimony and medical evidence. However, assailed the findings of Mr.Alamzeb Khan, ASJ‑I, Peshawar, on the ground that the trial Court has failed to apply judicial mind to the facts and circumstances of the case and thus has not properly appreciated the evidence made available to it.

7. We have given our serious consideration to the submissions made by the learned counsel for the parties and examined the record with the considerable degree of care and caution.

8. Complainant, Ghulam Akbar (P.W.9) and Jamal (P.W.10) are the eye‑witnesses of the present occurrence. Complainant is the brother of the deceased and brother‑in‑law of P.W. Jamal, hence, they are related inter se as well as with the deceased. They are inimical towards accused, Fazal Dayan (in CrA. No.10/95) and acquitted accused‑respondents, Hidayatullah and Saifur Rahman (in CrA. No.50/92). Son of Fazal Dayan, namely, Zafar Iqbal, was murdered for which Muhammad Akbar, father, and Muhammad Shafique, brother of the complainant and deceased were charged. Sabirullah and Imdadullah, brothers of Hidayatullah, were eye‑witnesses in the said murder case. This is also alleged to be the motive for the present occurrence. Furthermore, complainant, Ghulam Akbar, and P.W. Jamal were charged for attempting at the life of Muhammad Nawaz, brother of acquitted accused Saifur Rehman. P.W. Jamal was also charged for attempting at the lives of one Riaz and Nisar nephews of complainant. Thus, in the given circumstances the evidentiary value of the statements of these two eye‑witnesses has to be examined and looked into with great care and caution.

9. The occurrence has allegedly taken place in the centre of Hashtnagri Bazar surrounded by the numerous shops near the Railway Pathak at 13‑30 hours when deceased alongwith his brother, complainant Ghulam Akbar (P.W.9) and P.W. Jamal were proceeding towards Suzuki `Adda' in order to get a ride to their village. Appellant Fazal Dayan and respondents Hidayatullah and Saifur Rahman appeared at the scene of occurrence and' Hidayatullah called out his two friends to fire at the deceased who spontaneously fired with which deceased, Ali Akbar, was hit and died on the spot instantaneously. P.Ws. Ghulam Akbar and Jamal escaped unhurt. After the incident the dead body of deceased, Ali Akbar, was taken to the nearby Police Station, Faqirabad in a Suzuki which creates doubt in the judicial mind as to the mode, manner and time of the occurrence.

10. It is observed from the site plan Exh.E that venue of occurrence is an unpaved alley between Railway Track and shops parallel to Dalazak Road in Faqirabad. This area, during business hours is fairly busy, though it does not constitute to be the main artery of the road system but often sufficient pedestrians and bicycle riders could be found using this "Kacha" path. It is observed with great curiosity that: It seems impossible that 8/10 fires were shot, deceased received as many as eight injures, he fell down to the ground and laid there, may be for a while, but still Police was unable to collect or detect any stain of blood or earth reflecting spill of blood. It is but natural that blood would soak into the earth, no sooner did it fall on the ground. Therefore, it made us to believe the fact that actual occurrence has not taken place as alleged by the prosecution.

11. Now coming to the medical evidence, it is to the effect that deceased had died much earlier than 1‑30 p.m. According to Dr.Abdul Aziz (P.W.4) who had conducted post‑mortem examination of the deceased on the day of occurrence at 3‑30 p.m. deposed that rigor mortis was about to set in. In his cross‑examination he admitted that occurrence had taken place earlier than 12‑00 Noon.

12. As stated earlier that occurrence took place in broad daylight in a place full of customers, shopkeepers at a busy business place. The prosecution failed to produce' even a single person who could have testified that the occurrence in fact had taken place let alone identifying the assailants. It is understood that no one would come forward to depose against the accused out of fear or enmity but simply recalling the incident without mentioning the names of culprits could have done no harm to anybody. It is rather in the statement of 1.0. Fazal Karim Khan (P.W.6) that when examined under section 161, Cr.P.C., the shopkeepers of the vicinity expressed their ignorance about the incident. If none else, the driver of the Suzuki in which the dead body of the deceased was carried from the spot to the Police Station could have been examined to testify the place and time of occurrence as alleged by the prosecution. Moreover, there are material contradictions in the statements of eye‑witnesses which would lead to the conclusion that it was an unseen crime.

13. Complainant, Ghulam Akbar, in the F.I.R. as well ag in his statement before the trial Court claimed the scene of occurrence to be across the `Pathak' whereas P.W. Jamal submitted that the moment they reached near the `Pathak' firing took place. On the contrary site plan Exh.PB does not complement the version of these eye‑witnesses. There is no showing of `Pathak' as such. Furthermore, it is in the statement of Ghulam Akbar, complainant, that at the time of occurrence, Hidayatullah was at a distance of 4 paces from him but it does not stand to reason that firing of two assailants could cause death of a deceased by hitting 8 bullets injuries how complainant and P.W. Jamal would escape unhurt when fired at by three persons. There is yet another material contradiction in the statement of the eye‑witnesses which could not skip our attention. According to complainant they were proceeding to `Adda' in `rickshaw'. It is not explained by him as to what happened to `rickshaw', where did they deboard the `rickshaw' as admittedly at the time of occurrence they were walking on foot as claimed by P.W. Jainal. It is further in the statement of P.W. Jamal that Hidayatullah (acquitted accused), had bawled to co‑accused to fire from a cabin but in the site plan Exh.PB no such cabin is shown at a point where Hidayatullah, acquitted accused, was allegedly present at the time of firing.

14. After assessing and appreciating the entire evidence made available in both the cases, we have not been able to persuade ourselves to agree with the story alleged by the prosecution. We feel that Ghulam Akbar (P.W.9) and P.W. Jamal, eye‑witnesses, have not come out with correct and true version of the occurrence. However, so far as motive is concerned there can be no two opinions that motive is a double‑edged weapon which could cut both the ways.

15. Hidayatullah, respondent, had taken the plea of alibi. He claimed that at the relevant time he was present in his office (Allama Iqbal Open University, Peshawar). In support of his plan he produced Sayyed Hussain Shah (D.W.1), Regional Director who confirmed presence of the accused in his office from 8‑00 a.m to 2‑00 p.m on the day of occurrence. This witness referred to Office Order Exh.D.W.l whereby the whole staff was directed to work for at least half an hour in excess of the daily Schedule to facilitate admission. He also referred to Certificate Exh.D.W.l/2 issued by him and also photo copy of the attendance register as Exh.D.W.l/3 wherein accused, Hidayatullah, is marked present on duty. D.W. Sayyed Hussain Shah, being senior responsible Government Officer, is not expected to depose falsely in favour of the accused, Hidayatullh.

16. As regards abscondence of appellant‑convict, Fazal Dayan, it is well settled by now that it is a corroborative piece of evidence and does not have any substantial value. For the reasons enumerated above Appeal No. 10 of 1994 is accepted and appellant, Fazal Dayan, is acquitted by way of grant of benefit of doubt. He be set free forthwith if not required in any other case. Hence Appeal No.50 of 1992 is dismissed. Respondents are on bail and shall stand discharged of the bail bonds. N.H.Q./1794/P Order accordingly.