P L D 2006 Peshawar 144 (PLP)

FAZLUR REHMAN KHAN, J.

By the judgment/order dated 20-12-2003, the learned Addl. Sessions Judge, Karak, has convicted appellants Maqbool Shah, Saeed Shah and Barkat Ali Shah under section 302(b), P.P.C. and has sentenced them to undergo imprisonment for life each with an order to pay Rs.50,000 as compensation to the legal heirs of the deceased under section 544-A., Cr.P.C. and in default of payment to undergo further 6 months' R.I. with benefit under section 382-B, Cr.P.C. in case F.I.R. No.15 dated 9-7-2000 of P.S. Shah Saleem, under sections 302/324/427/148/149, P.P.C. By the same judgment/order, the learned Additional Sessions Judge has acquitted accused-respondents Faridullah Shah, Umar Shah, Dilawar Shah, Abdur Rehman, Noor Ajab Shah and Akram Bacha. The appellants vide Cr. A. No.7 of 2004 have challenged their conviction and sentences while complainant Noor Badshah has filed Criminal Appeal No.67 of 2004, thereby challenging the acquittal of the accused/respondents. Similarly, the complainant has filed Criminal Revision No.24 of 2004 for enhancement of the punishment of the appellants. By this common judgment, we propose to dispose of both, the appeal against conviction and appeal against acquittal along with criminal revision because they arise out of the same judgment/order of the learned Additional District Judge.

2. The prosecution version as contained in the F.I.R. Exh.PA/1,is that at about 8-15 a.m. on 9-7-2000, Muhammad Zarin Khan, S.H.O. (P. W.12) was present in the P.S. when he heard the report of fire shots, on account of which, he along with the police party proceeded to the place of firing at Dak-Banda, where he found an official vehicle of white colour, bearing No.A-1131 of P.S. Banda Daud Shah. The driver of the vehicle was Naimatullah (P.W.9). In the body of the pick-up, the S.H.O. found one lady and a girl in injured condition while on the front seat, a person (complainant) along with driver (P.W. Naimatullah) were found lying injured and a boy as dead. The complainant Noor Badshah (P.W.8) reported to the S.H.O. that his brother Hussain Badshah is posted as S.H.O. in P.S. Banda Daud Shah. His wife was ill and on the day of occurrence, he wanted to take her along with the small boy/girl for treatment to Civil Hospital, Takht-Nasrati in the official vehicle. When they reached the spot, he found that accused Maqbool Shah, Faridullah Shah, Saeed Shah, Umar Shah, Dilawar Shah, Barkat Ali Shah, Abdur Rehman, Wali Shah, Noor Ajab Shah and Akram Badshah, duly armed and entrenched were present on the spot with the hope that in official vehicle his brother Hussian Badshah, S.H.O., would be travelling. When the pick-up reached the spot, all the accused started firing at the pick-up. With the fire shots of Maqbool Shah, Saeed Shah and Barkhat Ali Shah, appellants herein, Abdul Samad son of Inayat Khan and grand son of the complainant, sitting in the front seat received injuries and died in the pick-up while the complainant and the driver received injuries while with the fire shots of other accused, his sister-in-law Mst. Umar Begum (P.W.11), Mst Aasia Bibi, daughter of Hussian Badshah received injuries. The occurrence was stated to had been seen beside the complainant by the driver of the pick-up P.W. Naimatullah, P.Ws. Gul Shaban, Constable No.427 and Mursaleen (P.W.10). Motive for the offence was stated to be dispute over some landed property.

3. After reducing the report of the complainant into writing, in the shape of a Murasila, Exh.PA, the same was sent to the Y.S. for registration of the case vide F.I.R., Ex.PA/l. P.W. Muhammad Zarin Khan, S.H.O., then sent the injured and the dead body to the Hospital for treatment/post-mortem examination in the official vehicle, being driven by F.C. Gul Shah Barn. After registration of the case, he received the number of the F.I.R. on wireless. He then informed the officials of P.S. Takht-Nasrati to prepare the injury-sheets of the injured and injury?sheet/inquest report of the deceased. He then went to the spot and prepared the site-plan, Exh.PB, at the instance of P.W.-Mursaleen. He picked-up blood from the front of the pick-up of the injured and the deceased He also picked-up blood through cotton from the floor of the pick-up. He also took into possession some pieces of broken glass of the pick-up from the front seat. He also picked-up some blood near the pick-up. From the spot, he recovered 72 empties of 7.62 bore, in scattered position, having the smell of freshly discharged, and took the same into possession vide recovery memo., Exh.PW4/3. After the post-mortem examination of deceased Abdul Samad and medical examination of the injured, he received their blood-stained garments along with 3 phials, containing 3 spent bullets, one extracted from the body of Abdul Samad deceased, the other from the body of P.W. Naimatullah and the third from the body of P.W. Umar Begum, injured. He also took into possession the official vehicle and got examined the same through mechanic. After the rejection of their bail before arrest, he arrested accused Dilawar Khan, Noor Ajab Shah and Faridullah Shah, while obtained warrants of arrest against the other accused under section 204, Cr.P.C. and proclamation notices under section 87, Cr.P.C. He also sent the blood stained articles to F.S.L. and after receipt of the report, Exh.Pl, placed the same on file. After completion of investigation; he submitted complete challan against the accused on 14-9-2000 in Court.

5. On submission of challan, the appellants and the accused/respondents were charged under sections 302/324/427/148/149, P.P.C., to which, they pleaded not guilty and claimed trial. In support of its case, the prosecution examined as many as 12 witnesses, out of whom, P.Ws. Noor Badshah, Naimatullah F.C. No. 117, Mursaleen and Mst. Umar Begum furnished an eye account of the occurrence while Dr. Gul Sanat Shah (P.W.1) conducted the post-mortem on the dead body of Abdul Samad and medically examined P.Ws. Noor Badshah, Naimatullah, F.C., Umar Begum and Mst. Aasia Bibi while P.W. Muhammad Zarin Khan has investigated the case. Similarly, Muhammad Qayyum (P.W.7) has examined the official vehicle No.A-1131/KT while the rest are formal witnesses.

6. While conducting the post-mortem examination on the dead body of Abdul Samad, deceased, on 9-7-2000 at 10-00 a.m., he found the following:-- "(l) 1/2" x 1/2" entry wound on left side of abdomen at lumber region and blackening and burning of skin. No exit bullet recovered from the rt. side of abdomen. (2) 1/2" x 1" lacerated wound on left lateral side of abdomen. (3) 1/2" x 1" lacerated wound from lateral direction on anterio medial side of left thigh. (4) 1/2" x 1" lacerated wound from lateral direction on anterio medial side of left thigh 1" below wound No.3.??? . External Examination: Abdomen: Walls, peritoneum, small intestines and their contents, large intestines and their contents, kidneys injured. Stomach and its contents 15 cc semi fluid. Remarks: Fire arm injury to small and large intestines, blood vessels and kidney leading haemorrhage shock and death. Probable time between injury and death: 15-30 minutes and between death and PM: within four hours." On the same day, he also medically examined P.Ws. Noor Badshah, Umar Begun[, Naimatullah and Aasia Bibi and found the following; Noor Badshah: "(1) 1/2" x 4" lacerated wound on left rt. Buttock posteriorly upto skin depth. (2) 1/4" x ?" wound on left upper hand posterio medially. Referred to DHQ Hospital Karak. Kind of weapon FAI. ' Nature of injury: simple, Kind of weapon: FA." Mst. Umar Begum: "(1) 1/4" x 1/4" entry wound on rt. lower left 4" above rt. Ankle joint and no exit wound. (2) Referred to DHQ Hospital Karak for treatment and management. Kind of weapon: FAI. Nature of injury: Simple." Naimatullah, FC No.117: "(1) 1/4" x 1/4" entry wound on medial side of left lower leg making exit 1/2" x 1/2" on lateral side of left lower leg 3" above the ankle joint. (2) 114" x 1/4" entry wound 2" below wound No.l. (3) 1/4 " x 1/4" entry wound on lateral side of rt. lower leg making exit on lower leg. 1.1/2" above right Ankle joint. Kind of weapon : FAI. Nature of injury: Simple." Mst. Aasia Bibi: "(1) 1/4 x 1/4" entry wound on rt. Shoulder posteriorly making exit 1-2 x 112" on lateral side of upper hand i.e. blood stained Qamees. Kind of weapon: FAI, Nature: Simple." In cross-examination, he admitted it to be correct that blackening can be caused within a distance of 3/4 feet i.e. from close range. He did not agree to the suggestion that a lacerated wound can be caused with a sharp-edged weapon. He stated that no exit wound on the person of Noor Badshah injured was found. He further stated that in the case of all the injured persons the entry wound were of one and the same size i.e. 1/4" x 1/4".

7. On close of the prosecution evidence, the appellants/accused-?respondents were examined under section 342, Cr.P.C. but they denied the charge against them. However, they neither examined themselves under section 340(2), Cr.P.C. nor produced any evidence in their defence and stated that they rely on the inquiry reports conducted by DSP Sultan, Exh.DA, (three sheets) with its material, DSP Muhammad Israr, Exh. DB, (two sheets) with its material and DSP-I Crime Branch, Peshawar, its report and material available on file Ex. DC containing 26 sheets. They also placed reliance on file on the cross case F.I.R., site-plan, certified copies of the statements of P.Ws. 14 and 15, Exh.DD, Exh.DE and Exh.DF, containing five sheets.

8. On appraisal of the evidence on record and hearing arguments from both sides, the appellants were convicted as aforesaid; while the accused/respondents were acquitted vide impugned judgment dated 20-12-2003.

9. We have heard Barrister M. Zahurul Haq, Advocate, for the appellants/accused-respondents, Mr. Asadullah Chamkani, Advocate, for the complainant and Mr. Sher Bahadur Khan, Advocate for the State and have also perused the record.

10. In support of the appeal against conviction and for appeal against acquittal, the learned counsel for the appellants and accused/respondents contended that in the present case report vide Murasila, Ex. PA, was made on the spot after preliminary investigation, as such, it has lost its authenticity; that all the eye-witnesses except PW ?Naimatullah, are highly interested witnesses and the latter has not supported the prosecution version; that there are not only material contradiction in the ocular version furnished by the eye-witnesses and the medical evidence on record but also there are sufficient improvements in the eye account given before the Court as against the version given in the F.I.R.

11. As far as the first argument of the learned counsel for the appellant/accused-respondents is concerned, admittedly, the report vide murasila, Exh.PA was made on the spot. Usually, such a murasila is drafted on the spot after preliminary investigation and such like reports are looked by the Court with suspicion.

12. So far as the second argument of the learned counsel for the appellant/accused-respondents that all the eye-witnesses except P.W. Naimatullah are interested witnesses and the latter has not supported the prosecution version, is concerned, it is not without force. P.W. Noor Badshah is the brother of Hussain Badshah, S.H.O., who during the days of occurrence was posted in the nearby police station Banda Daud Shah while P.W. Mst. Umar Begum is the sister-in-law of the former and wife of the latter. Similarly, P.W. Mursalin is the son of the complainant. They are, therefore, highly interested witnesses and in such a case for conviction of the accused some corroboration either from independent or reliable source would be required but the same is lacking in this case, so much so, that P.W. Naimatullah, who appears to be some what an impartial witnesses, has not supported the prosecution case, who has stated in cross-examination that he had neither identified nor knew any of the accused till date i.e. 1-9-2003, on which date his statement was recorded in the Court.

13. So far as the third argument the learned counsel for the appellants/accused-respondents is concerned, it is also not without force. The ocular version, as given in the F.I.R., is that when the complainant-party reached the spot, all the accused were already entrenched, duly armed started firing at them, meaning thereby that all the accused fired at the vehicle from one point but the site-plan, Exh.PB, shows that the trenches have been shown therein at Point-B, behind a wall of about 2 feet high and on seeing the vehicle, appellants Maqbool Shah, Saeed Shah, Barkat Ali Shah and accused/respondent Faridullah Shah came therefrom to Points Nos.8 to 11 and started firing at the vehicle but no empty shell has been recovered from these points. Similarly, in the site-plan, at the time of occurrence, accused/respondent Umar Shah, Dilawar Shah and Noor Ajab Shah had been shown at point-C and on seeing the vehicle they came to points Nos.12 to 14 and started firing at the vehicle from the back but also no recovery has been made from these points. Besides, at the time of occurrence, accused/respondents Abdur Rehman, Wali Shah and Akram Bacha had been shown at Points Nos.15 to 17 from where 72 empties of 7.62 bore have been shown to have been made. Perusal of the photos of the vehicle, Ex. PW 12/1 to Exh.PW12/11 shows that there are not only bullet marks on the front of the vehicle, breaking the front glass but also from the rear at the `daalla'. According to the site-plan, the distance from point-A where the vehicle after the occurrence stopped and Point-B is 62 paces and between point-A and points Nos.8 to 11, 30, paces. Similarly, the distance between point-A and points 12 to 14 ranges from 28 to 32 paces and point-A to points 15 to 17 ranges from 20 to 22 paces. One pace is usually taken to be equal to 1-1/2 feet. If the prosecution version, as given in the F.I.R., is taken to be correct, then after seeing the vehicle at point-A, the appellants and the accused/respondents changed their positions, covering sufficient distance for firing at the vehicle, in order to meet and explain the bullet marks on the vehicle from the front and at the rear, which are sufficient improvements casting high doubt over the prosecution version.

14. The most astonishing feature of the case is that as per site-plan, the appellant and the accused/respondents have fired from a distance of not less than 20 paces or in other words 50 feets but the medical evidence on record shows that during post-mortem examination, blackening /burning on the skin of the deceased Abdul Samad were found. Such blackening or burning could be caused only from a maximum distance of 6 inches in the case of a pistol/revolver and in the case of a shotgun from a distance of 12 inches, but this feature of the case has not been explained by the prosecution, which shows that the occurrence has taken place not in the manner, as alleged by the prosecution.

15. In view of the foregoing situation, we are of the considered view that the prosecution has failed to prove its case against the appellants and the accused/respondents beyond any reasonable doubt and in view of the same, there is no need to go into the merits of the plea taken in defence.

16. Accordingly, we accept Criminal Appeal No.7/2004 and acquit Maqbool Shah, Saeed Shah and Barkat Ali Shah, appellants from the charges levelled against them. They shall be released from jail forthwith, if not required in any other case. Resultantly, appeal against acquittal of the accused/respondents (Criminal Appeal No.67/2004) and Criminal Revision No.24/2004 for enhancement of the punishment of the appellants fail and are hereby rejected. H.B.T,/92/P???????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.