2016 PLP 181 (YLRN)

SHAHID HAMEED DAR, J.

This criminal appeal is directed against judgment dated 8.6.2010, whereby learned Additional Sessions Judge, Sarai Alamgir (Gujrat) convicted Sudheer Ahmad (appellant) under section 302(b)/148/149, P.P.C. and sentenced him to imprisonment for life with the direction to pay a sum of Rs.1,00,000/- to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C., in default whereof to further undergo simple imprisonment for six months. The benefit of section 382-B, Cr.P.C. was, however extended to him.

2. The occurrence took place, at 7.45 a.m. on 26.10.2004, in the area of village Tooray, situated at a distance of five miles towards east from Police Station Sarai Alamgir. It was reported by Rasheed Arshad (complainant/P.W.9) to Muhammad Akram SI (P.W.I1) at village Fareed Jaggo, at 8.20 a.m., who reduced into writing complaint (Exh.PC) and despatched it to police station through Muhammad Afzaal 485/C for registration of case, on the basis whereof Muhammad Sadiq ASI/DO drew up formal FIR (Ex.PC/1), at 8.45 a.m., the same day.

3. The prosecution case as alleged by the complainant (P.W.9) in FIR (Exh.PC/1) is that he along with Raja Muhammad Hanif, Jameel Ahmad and Abdul Munaf alias Sajid rode vehicle No.MRAA-882, which was driven by him, on 26.10.2014; Raja Muhammad Hanif (deceased) occupied the front seat, whereas Jameel Ahmad and Abdul Munaf alias Sajid occupied on the rear seat; they had hardly left their village for the police station when two unknown motorcyclists started chasing them and made dubious phone-calls to someone; it was at about 7.45 a.m., when they reached canal Upper-Jhelum-embankment, within the area of Toor, where Abid Mehmood (since PO), Ijaz Hussain (since PO), Zulfiqar Ahmad (since convicted), Abdul Razzaq (since convicted), Amjad (since PO) and Sudheer (appellant), all armed with Kalashnikovs, suddenly came in front of their vehicle; they opened firing due to which tyres of their vehicle were burst and it slowed down; Abid accused made a fire shot, which hit left lumber area of Raja Muhammad Hanif; Amjad's fire shot landed at left deltoidt of Raja Muhammad Hanif; the fire shot of Ijaz Hussain hit left elbow of Jameel Ahmad; the bullets fired by Zulfiqar Ahmad (since convicted), Abdul Razzaq (since convicted) and Sudheer (appellant) landed at the left side of chest, right side of back and below right axilla of Abdul Munaf; he (complainant) luckily escaped any injury on his person; the vehicle was riddled by the firing of the accused and its panes were smashed; the occurrence was witnessed by Muhammad Inayat and Khalil Ahmad (PWs not produced); after satisfying themselves that all the riders had been murdered, the accused and the motorcyclists fled the spot while firing and raising Lalkaras; Muhammad Nazir and Master Ghulam Murtaza accused (since acquitted) abetted the crime; he (complainant) was informed early in the morning by Jamshed Ahmad and Iftikhar Ahmad that all the accused gathered at the poultry farm of Muhammad Nazeer, where Master Ghulam Murtaza and Muhammad Nazeer provoked them by saying that Rashid Arshad and Raja Muhammad Hanif would keep degrading them till they lived so they be killed they undertook to bear all the expenses of the litigation, whereon all the accused agreed to act, as commanded; he and his companions were moving towards Police Station Sarai Alamgir to report the incident of conspiracy of the accused, when they were ambushed and done the damage by them. The motive behind the occurrence was that Zulfiqar Ali, Behnoi of Abid accused had got lodged case FIR No.281/04, dated 15.4.2004, under sections 324, 337-F, P.P.C. at Police Station Sarai Alamgir against them (complainant party) wherein Raja Muhammad Hanif used to help them, due to which, accused committed the crime.

4. Dr.Syed Islam Zafar (P.W.12) medically examined Abdul Munaf and Jameel Ahmad injured P Ws, at 8.55 a.m. on 26.10.2004. He vide medico-legal reports Exh.PR and Exh.PS, found following injuries on their persons:- ABDUL MUNAF:

1. A firearm wound 1/8 cm x 1/8 cm on front of left chest 3 cm above nipple. No burning but bleeding was perfused. Corresponding mark of injury was present on Qameez.

2. A firearm wound 1/8 x 1/8 cm under right armpit, burning was positive. Bleeding perfused. Mark of injury was positive on Qameez.

3. A firearm wound 1/2 cm x 1/2 cm on inferior border of right scapula at back, burning was positive. Mark of injury present on the Qameez.

4. A firearm wound 1/2 cm x 1/2 cm on left scapula region and back at inferior border of the scapula, bleeding perfusely. Corresponding mark of injury was present on Qameez. JAMEEL AHMAD:

1. A lacerated (crushing) wound 6 cm x 4 cm in front of left forearm from elbow joint to middle of forearm, burning was positive, bleeding perfusely. Corresponding mark of injury was present on the Qameez.

5. Dr. Tahir Bashir (P.W.2) performed autopsy on the dead body of Raja Muhammad Hanif, at 1.15 p.m. on 26.10.2004. He observed, vide postmortem examination report (Exh.PA), following injuries thereon:-

1. A firearm entry wound 1cm x 1 cm on the right arm laterally. No blackening was present.

2. A firearm exit wound 1cm x 1 cm on the right upper arm medially.

3. A firearm entry wound 1cm x 1 cm right chest in the middle axillary.

4. A firearm exit wound 3 cm x 2 cm on the left chest in mid axillary line.

5. A firearm entry wound 1 cm x 1 cm on the left upper arm.

6. A firearm exit wound 3 cm x 3 cm on the left upper arm laterally. The medical officer opined that death in this case was due to injury No.3, which had caused excessive haemorrhage and shock. The probable time that elapsed between injuries and death was "less than 15 minutes" and that elapsed between death and postmortem examination was less than eight hours.

6. Initially, Muhammad Akram SI (P.W.11) carried out the investigation of this case. He took into possession blood of the deceased by means of cotton from the front seat of the vehicle vide seizure memo Exh.PG; secured thirty crime empties, eighteen of Kalashnikov and twelve of 222-bore, from the place of occurrence through memo of recovery Exh.PH and vehicle (P6) with broken window-panes and burst tyres vide recovery memo Exh.PF. On his retirement, investigation was entrusted to Gulzar Ahmad SI (P.W.8), who got issued proclamations against all the accused and handed them over to Muhammad Aslam 586/C (P.W.7) for execution thereof; he arrested accused Zulfiqar Ahmad, Abdul Razzaq, Sufi Nazeer and Ghulam Murtaza on 4.2.2005 and submitted report under section 173, Cr.P.C. against them before the learned trial court; the said accused faced trial in the earlier round, two out of whom, Zulfiqar Ahmad and Abdul Razzaq were convicted/sentenced and rest Ghulam Murtaza and Nazeer Ahmad were acquitted of the charge vide judgment dated 27.2.2007 passed by the learned Additional Sessions Judge, Kharian. It was on 28.10.2008, when investigation of this case was entrusted to Sagheer Ahmad SI (C.W.1), who arrested Sudheer Ahmad (appellant), the same day and on completion of investigation submitted challan under section 173, Cr.P.C. against him before the learned trial court for his trial in accordance with the law.

7. To prove its case, the prosecution produced twelve witnesses, whereas Sagheer Ahmad SI was examined as C.W.1. Dr. Syed Islam Zafar (P.W.12) proved the medico-legal reports (Exh.PR and Exh.PS) of Abdul Munaf injured and Jameel Ahmad injured. Dr.Tahir Bashir (P.W.2) proved contents of the postmortem examination report (Exh.PA) of the deceased. Rasheed Arshad complainant (P.W.9) and Jameel Ahmad injured (P.W.10) furnished the ocular account. They claimed to have seen the appellant Zulfiqar Ahmad, Abdul Razzaq and Sudheer Ahmad (appellant), joined by their co-accused firing at the said vehicle and killing Raja Muhammad Hanif, besides causing injuries to Abdul Munaf and Jameel Ahmad. The eye-witnesses also supported the motive as alleged by the prosecution. Muhammad Akram SI (P.W.11), Gulzar Ahmad SI (P.W.8) and Sagheer Ahmad SI (C.W.1) are the investigating officers, who rendered details of the investigation conducted by them. The rest of the evidence is more or less of formal nature.

8. When examined under section 342 Cr.P.C., Sudheer Ahmad (appellant) denied all the incriminating circumstances, put to him and in reply to question, "Why this case against you and why the PWs deposed against you?" he stated as under:- "I am innocent and have been falsely involved in this case. As I have been appearing against the complainant in criminal litigation and during the investigation of the cases I was also a PW in case under section 324, P.P.C., FIR No.281/2004 PS Sarai Alamgir, against the complainant, attested copy of report under section 173, Cr.P.C. is produced as Ex.D

1. It was an an-witnessed occurrence and from the firing of some unknown person, the victim received injuries. I have been involved in this case because of enmity. The complainant after receiving the information joined the police investigation after receiving the information joined the police investigation after much delay and became a false witness. Raja Hanif deceased was having enmity in the area and Abdul Munaf PW was a gun man of Raja Hanif and was residing with him for the last 4/5 years before the present occurrence. The so-called injured PW Abdul Munaf who is alleged to have been injured at the time of occurrence has not appeared as a PW in the trial, so his injury cannot be considered in the conclusion of this trial. Moreover, no specific injury has been attributed to me and four accused persons have been attributed joint, firing on Abdul Munaf PW (not produced and given up by the prosecution). Abdul Munaf PW received only two wounds with the dimension of 1/8 cm 1/8 cm, which cannot be a result of fire-arm or a bullet injury and it can safely be said that these injuries are the result of pellets, whose empty has not been recovered from the place of occurrence. The prosecution has miserably failed to prove the case against me, conjectures, presumptions and suspicion cannot take the place of proof. The only evidence of abscondence (unproved) cannot be considered a proof against me. The I-O, who conducted the investigation of the case after exhaustive and thorough investigation has declared me innocent and evidence of I-O under oath is to be considered and appreciated while deciding the case, the opinion of the I-O remained unchallenged as Complainant of the case did not file any private complaint or any application against the investigation conducted by the I.O., so my case is clearly distinguishable from the accused, who were previously convicted and sentenced and prosecution story is concocted one as compared to me as even injured witness has not turned up in the case. During the course of investigation nothing incriminating against me has been recovered and I was also declared innocent. This plea of innocence and alibi was also taken up during the course of my first version before the police. In order to prove my first version hundreds of respectables of the area appeared before the I.O. and spoke about my innocence and it was also affirmed by the 15 respectables of the vicinity on Holy Qur'aan." He did not opt to make statement under section 340(2), Cr.P.C. nor he adduced evidence in defence. On culmination of trial, the learned trial court pronounced verdict of guilt against the appellant, in mentioned terms.

9. Learned counsel for the appellant contended that the prosecution badly failed to prove its case beyond reasonable shadow of doubt inasmuch as, the injured PW Abdul Munaf, who was allegedly fired at by the appellant did not appear at trial to depose against him; the appellant was admittedly a resident of village Dak Jattan, but his place of residence was dishonestly and mischievously shown as Dhoke Bangali so as to show him an absconder in this case; all the allegations against the appellant were found false during the course of investigation and police categorically dubbed him innocent; the appellant contested local body's elections from the constituency of Dak Jattan, which was known to all, besides he remained available to the electorates but no police official ever came to him to cause his arrest; the evidence of abscondence has been fabricated under a conspiracy by the prosecution so as to inject some life in their otherwise false case; the appellant underwent physical remand for fourteen days but nothing was recovered at his instance in the interregnum; lastly contended that the appellant did not participate in the occurrence and he had been falsely involved in this case under a conspiracy by a group of liars, the prosecution witnesses.

10. On the other hand, learned Deputy Prosecutor General Punjab assisted by learned counsel for the complainant supported the impugned judgment by submitting that the ocular account had been furnished by the natural witnesses including Jameel Ahmad injured (P.W.10); the appellant absconded after the occurrence and he was duly proceeded against under section 87, Cr.P.C. before he was arrested by the police on 28.10.2008; mere fact that Abdul Munaf injured did not show up during the trial may not be sufficient to hold that the prosecution had not succeeded in bringing home the guilt of the appellant beyond any shadow of doubt; the abscondence of the appellant spans over four years, which is a strong incriminating circumstance against him; the appellant shared the community of intention with his co-accused and they all murdered Raja Muhammad Hanif and almost killed two others with community of intention; the appellant failed to discharge the onus, resting on his shoulder to prove his plea of alibi during the trial.

11. After hearing the learned counsel for the parties and perusing the record with their able assistance, it is observed that the appellant's case falls miles apart from that of his co-accused Zulfiqar Ali and Abdul Razzaq, whose appeal (Criminal Appeal No.461/2007) has been dismissed through a separate judgment of even date. In appellant's case, the prosecution has badly failed to discharge the onus to prove their case against him as effectively and-believably as they did in relation to the said co-accused (convicts).

12. The most crucial prosecution witness Abdul Munaf, who had allegedly been jointly fired at by the appellant and the said co-convicts, did not show up during the trial and he was given up by the prosecution on 25.3.2010 being unnecessary, although Rashid Arshad-complainant (P.W.9) claimed in his testimony on 3.5.2010 that Abdul Munaf PW was reluctant to appear in the court due to fear of the accused. The appellant did not have any previous enmity or grudge against the deceased Raja Muhammad Hanif or any other person of the complainant party nor he was directly or indirectly linked with the motive attempted murder-case, which had been got registered by Zulfiqar Ahmad co-accused against Rashid Arshad (complainant/P.W.9) and others. He was told phuphizad of Ghulam Murtaza, an alleged abettor of the occurrence, who had been acquitted of the charge by the learned trial court together with the co-abettor Nazir Ahmad vide judgment dated 27.2.2007.

13. The occurrence, as alleged by the prosecution, took place at the embankment of canal upper Jhelum. According to the allegations as contained in FIR (Exh.PC/1), six armed men, Abid Mehmood (since PO), Ijaz Hussain (since PO), Zulfiqar Ahmad, a lifer, Abdul Razzaq, a lifer, Amjad (since PO) and Sudheer (appellant), all armed with Kalashnikovs, made reckless firing at the vehicle-Surf 882-MRAA, wherein Rashid Arshad (complainant/P.W.9), Raja Muhammad Hanif (deceased), Abdul Munaf PW (not produced) and Jameel Ahmad injured (P.W.10) were seated; the tyres of the vehicle were burst due to which it slowed down and accused got the opportunity to murder Raja Muhammad Hanif and injure Abdul Munaf etc.; Abid accused fired into the left flank of Raja Muhammad Hanif, whereas Amjad's fire shot hit his left deltoid; the fire shot of Ijaz Hussain landed at the left elbow of Jameel Ahmad (P.W.10), whereas Zulfiqar Ahmad, Abdul Razzaq accused and the appellant jointly fired at Abdul Munaf PW (not produced) and inflicted four firearm injuries on his thoracic region and the back. In the backdrop of the above allegations, it was Abdul Munaf injured, who was the most relevant and crucial prosecution witness against the appellant, as it was he alone who could best depose about infliction of injuries on his person either by the appellant or by his co-accused. It is prosecution's own case that firing of the appellant did not hit the deceased or the other injured PW Jameel Ahmad. Rest of the allegations, as to deflation of tyres and bullets zooming through the body of the said vehicle are non-specific, which could only be made specific and meaningful against the appellant, had Abdul Munaf injured been produced by the prosecution to depose against him.

14. The ocular account furnished by Rashid Arshad (complainant/P.W.9) and Jameel Ahmad (P.W.10), though makes complete circumference of the alleged occurrence, but it does not entail any plausible answer to an ingrained question, if Abdul Munaf injured had shown up as a P.W. at trial, wouldn't he have disowned and belied the entire prosecution case as to involvement of the appellant therein. Both the eye-witnesses could unarguably establish guilt of the appellant beyond any reasonable shadow of doubt, had Abdul Munaf injured not taken the decision of staying away from the trial of the appellant. Interestingly, he tendered eye-witness account of the occurrence fearlessly as P.W.10 together with the complainant and Jameel Ahmad injured PW, during trial of the co-accused, when appellant allegedly absconded and being a "proclaimed offender" he might have posed a potent/serious threat to him, in case he would adduce evidence against the said co-accused. With his arrest by the police, any such lurking fear, if there be in the mind of the said injured PW must have ceased to exist and he should have gone for his examination without a second thought. A couple of depositions made by the complainant in his testimony on 3.5.2010 as to aforesaid imaginary fear in the mind of Abdul Munaf injured, merely showed his anxiety to offer an explanation about a serious lacuna, which appeared in the prosecution case on 25.3.2010 when learned public prosecutor gave up the said P.W. as unnecessary.

15. The complainant (P.W.9) showed himself a lucky person of unique kind in his statement, when he contended that the hot headed accused showered volleys of bullets from all sides of the vehicle, which he drove then, but he escaped unscratched. Another deposition in his testimony is of astounding nature, whereby he contended that the accused assured themselves of death of all the riders of the under-attack vehicle, before they whisked away. It was the complainant who had pitched enmity with the accused for years and it was he again, who was a nominated accused of the motive-attempted murder-case, FIR No.281/2004 (supra), got registered by Zulfiqar Ali accused (convict), a brother-in-law (behnoi) of his co-accused Abid (since PO). Raja Muhammad Hanif (deceased) did not have any direct enmity with the accused. He had been murdered only for the reason that he helped Rasheed Arshad (complainant/P.W.9) during investigation of the said criminal case. How did the accused let their dead enemy (complainant) go unharmed, especially after they checked everyone and satisfied themselves about the death of all as deposed about by the complainant in his statement, before they fled the spot. The window-panes, on both the sides, including that on the side of the driver had been smashed to pieces by the firing of the accused who drew close to the said vehicle still firing from all four sides, but complainant surprisingly remained uninjured in storm of bullets, which gives rise to a million-dollars question, if it was he, who drove the said vehicle at the crucial hour? This riddle is mind-boggling which may reflect on the claim of the complainant that he drove the said vehicle at the time of the alleged occurrence and survived the nightmare by a dint of luck.

16. The witnesses of ocular account rendered description of events in the manner that vehicle of the complainant had been jointly fired at by all the accused, which resulted in flattening of its tyres and slowing down its speed, whereafter the accused made firing at the riders, killing one at the spot besides injuring two others. This description rendered each of the injured witnesses an incumbent constituent of the prosecution case, so far as the issue of establishing guilt of the appellant is concerned. In absence of Abdul Munaf, who could not only prove infliction of his own injuries by the appellant but also other allied aspects of the case, it cannot be said with certainty, especially when the appellant did not cause any injury to the deceased or to Jameel Ahmad PW, if he at all participated in the occurrence. With the production of Abdul Munaf PW, the bullet marks on the vehicle and the deflated-tyres would have been found talking and pointing to the guilt of the appellant, but it could not happen due to unwisely act of the prosecution. By withholding him, they (prosecution) rendered the ocular account and attached (thereto) pieces of evidence, virtually mute. In fact the injured witnesses are so closely inter-knit as to the facts of the case and respective roles of the accused, that dropping of one injured witness, allegedly hit by the appellant, would wholly unstitch the prosecution's apparel. Abdul Munaf was available to the prosecution but they abandoned him without any just cause, hence, appellant cannot be prosecuted or penalized for the injuries he allegedly sustained at the hands of the appellant and his co-accused nor could he be held liable for the remainder. The ocular account being shaky and untrustworthy is brushed aside.

17. The medical evidence rendered by Dr.Tahir Bashir (P.W.2), who performed autopsy on the dead body of Raja Muhammad Hanif (deceased) at 1.15 p.m. on 26.10.2014 vide postmortem examination report (Exh.PA) and Dr.Syed Islam Zafar (P.W.12), who medically examined Abdul Munaf and Jameel Ahmad (injured PWs) at 8.55 a.m. on 26.10.2014 vide Medico-legal Reports Exh.PR and Exh.PS respectively, may tell as to how many and by which weapon(s), the deceased and the injured witnesses received the bodily injuries and what was the nature and effect thereof, besides a few other details in relation to the dissection of the dead body and medical examination of the surviving injured, but it cannot identify the author(s) of such injuries. The ocular account having been disbelieved, the medical evidence serves little the prosecution-cause.

18. So far as the abscondence of the appellant, which spans over four years, is concerned, the prosecution failed to establish this fact through any viable evidence. They produced Muhammad Aslam 586/C (P.W.7) in this context, who contended in his testimony that he caused execution of non-bailable warrants of arrest, Exh.PW7/1 to Exh.PW7/8, of all the accused including Abid Mehmood, Muhammad Nazir (since acquitted), Ghulam Murtaza (since acquitted), Sudheer Ahmad (appellant), Zulfiqar Ahmad (since convicted), Abdul Razzaq (since convicted), Amjad (since PO) and Ijaz Hussain (since PO), and scribed his reports, Exh.PW7/1-A to Exh.PW7/1-H, on the reverse thereof. He also executed the proclamations of all the above said accused including the appellant, which was exhibited in evidence as PW7/B-1 to PW7/B-8. The non-bailable warrant of arrest (Exh.PW7/4) and proclamation (Exh.PW7/B-4) relate to the alleged disappearance of the appellant. There is a lethal infirmity attached with these documents, which relates to the fact that the appellant was a permanent resident of village Dak Jattan, but in his non-bailable warrant of arrest and proclamation, his residential village had been shown as Dhoke Bangali. Gulzar Ahmad Inspector (P.W.8) categorically stated in his testimony that Sudheer Ahmad (appellant) was resident of village Dak Jattan and not the resident of village Dhoke Bangali, as that what he learnt during investigation. He further stated that Dak Jattan and Dhoke Bangali were two separate villages and there was distance of about 10/11 miles in between them; Sudheer Ahmad's village was mentioned as Dhoke Bangali in his proclamation; he also mentioned his village as Dhoke Bangali when he presented an application (Exh.PE) before the learned magistrate for issuance of proclamation against him. He admitted that a number of persons appeared before him during the course of investigation, which not only mentioned about the village of the appellant as Dak Jattan but they also pleaded his innocence in their statements. Muhammad Akram SI (since retired P.W.11) cleverly admitted in his testimony that Sudheer Ahmad accused was resident of Dak Jattan and resided in village Dhoke Bangali. He also contended in the same breath that he had not brought anything on the record to show that Sudheer Ahmad lived in village Dhoke Bangali. He also admitted that some persons, who joined investigation with him deposed about the fact that Sudheer Ahmad was a resident of village Dak Jattan. Interestingly, he referred to the statement of PWs Khalil-ur-Rehman and Sarwar under section 161, Cr.P.C. by contending that they had shown the residence of the accused in village Dak Jattan. None of the investigating officers (P.W.8, P.W.11 and C.W.1) claimed that Sudheer Ahmad accused did not live in village Dak Jattan or he resided in village Dhoke Bangali. The process server Muhammad Aslam (P.W.7) deposed that his reports on the non-bailable warrants of arrest and on the proclamations have not been testified by any notable/respectable or for that matter, by any local inhabitant of the area. The complainant (P.W.9) admitted in his statement that Sudheer Ahmad accused contested local body's elections and so was said by Jameel Ahmad (P.W.10). They hinted at the constituency of the appellant as Dak Jattan with the contention that he lost the said election. All of these factors lead to suggest that the appellant had not absconded nor he remained fugitive from the law in this case. The evidence of abscondence has been manoeuvred by the prosecution, which does not convey any sense, hence, rejected.

19. The accumulative effect of the discussion, made hereinabove, is that the prosecution has badly failed in bringing home the guilt of the appellant beyond any reasonable shadow of doubt. The impugned judgment is brimmed with many a pitfalls, irreparable inconsistencies and a lot more infirmities, which render it an injudiciously pronounced verdict. Therefore, it is bound to be undone/annulled. Done accordingly. The impugned conviction/sentence of the appellant is set-aside and he is acquitted of the charge, he was tried for. He is present on bail by way of suspension of his sentence and he is discharged of his bail bonds. ZC/S-112/L Appeal allowed.